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 rules. So we will ultimately have to ask not whether the realists can defend their view but rather whether Hart’s theory is superior to theirs.

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?

I think Dan had the right answer to the first question. He said, in effect, that what Holmes should have said is not that the bad man is concerned to avoid punishment but rather that the bad man is concerned with how the state will use its power. In the criminal law, the state uses its power to punish violators. In the private law, it uses its power to enforce contracts, wills, and so on. When Holmes’s point is put in this more general way, as being about power rather than just punishment, he can answer the first objection.

We did not have as crisp an answer to the second objection. This is fitting as the second objection does not raise as crisp a point to start with. I think many of us were persuaded by Holmes’s point that our thinking about the law often reflects confusion about the relationship between law and morality. That suggests that the bad man’s perspective has a kind of clarity about the law that the rest of us lack. That said, it still does not seem obvious to me that this means the bad man’s perspective on the law gives us more insight in how the law works. Again, the law works only because most people are not, in fact, thinking like bad men.

Zach and Isha raised questions about whether judges play the role that Holmes suggests they do. Zach pointed out that members of the executive branch can refuse to enforce judicial decisions or pardon those who are convicted of violating the law. Isha described how prosecutors settle most cases by plea bargains, without obviously involving a judge. In both cases, it seems, the officials determining how the state will use its power are not judges. Consequently, if you’re interested in how the state will use its power, you might not necessarily be interested in how a judge will rule.

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!

We did not have much time to discuss this, so we don’t really know if my point could survive objections. Let’s leave as a challenge: the realists have been charged with exaggerating the extent to which laws are really indeterminate before judicial rulings. To make their view plausible, they would have to explain why they do not exaggerate in this way.

What Do Judges Do All Day?

Izzy brought up a really tough question for the realists. What do judges mean when they ask “what is the law?” The realists have argued that when civilians ask “what is the law?” they mean “how will a judge rule?” But suppose you’re a judge and you have to decide what the law is on the case before you. When you ask “what is the law here?” are you really asking “how will I rule on what the law is here?” That wouldn’t make a lot of sense.

Maybe the judge is trying to predict how a higher court will rule. I doubt that fits most judge’s decisions, but let’s roll with it. This would not help when the judges asking the question are on the highest court.

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.