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Are Judges Liars? A Wittgensteinian Critique of Law’s Empire

Published online by Cambridge University Press:  09 June 2015

Charles M. Yablon
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Extract

When Legal Realism first appeared in American jurisprudential thought in the 1920’s and early 1930’s, it was frequently misunderstood as an attack on the integrity and truthfulness of the American judiciary. After all, wasn’t it a central tenet of Legal Realism that judges did not decide cases by applying preexisting and authoritative legal rules, but merely decided cases in whichever way they thought was best? Such considerations led to the derogatory restatement of the Realist position as holding that the law is determined by “whatever the judge ate for breakfast”.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 3 , Issue 2 , July 1990 , pp. 123 - 138
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1990

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References

1. The literature on Legal Realism is voluminous. Some important recent works include: Kalman, L., Legal Realism at Yale: 1927–1960 (Chapel Hill: Univ. of N.C. Press, 1986);Google Scholar , Schlegel, J.H., “The Ten Thousand Dollar Question” (1988), 76 Calif. L. Rev. 467;Google Scholar Altman, B., “Legal Realism, Critical Legal Studies, and Dworkin” (1986), 15 Phil. & Pub. Aff. 205;Google Scholar Wiseman, Z.B., “The Limits of Vision: Karl Llewellyn and the Merchant Rule” (1986), 100 Harv. L. Rev. 465;Google Scholar Schlegel, J.H., “American Legal Realism and Empirical Social Science: From the Yale Experience” (1979), 28 Buffalo L. Rev. 459.Google Scholar See generally, Rumble, W., American Legal Realism (Ithaca: Cornell Univ. Press 1968).Google Scholar See also, Yablon, C., “Justifying the Judge’s Hunch: An Essay on Discretion” (1990), 41 Hastings L. J. 231.Google Scholar

2. This popular formulation of the sceptical position is cited by Dworkin. Dworkin, R., Law’s Empire (Harvard: Harvard Univ. Press, 1986) at 36.Google Scholar Neither Dworkin nor any other source I have consulted is able to locate the precise origins of the phrase. 1 suspect, however, that it derives from a statement by Pound in which he contrasts a system of law to the arbitrariness of “Cadi” justice. Pound refers to “the oriental Cadi administering justice at the city gate by the light of nature tempered by the state of his digestion.” Pound, “The Decadence of Equity” (1905), 5 Col. L. Rev. 20, 21.Google Scholar Twenty five years later, in seeking to refute the notion that non–rule based decisionmaking necessarily involved arbitrariness, Jerome Frank made reference to Pound’s comment and answered “no more than in France, Germany, England or the United States, is the judge in Mohammedan countries supposed to decide cases according to his passing whim or the temporary state of his digestion”. Jerome, Frank, “Are Judges Human?” (1931), 80 U. of. Pa. L. Rev. 17, 24.Google Scholar

3. Holmes, O.W., The Common Law (Boston: Little, Brown, 1881).Google Scholar This work, and particularly its first chapter, became an almost sacred text to the Realists, its thesis adumbrated in numerous other articles. See e.g. Max, Radin, “Law as Logic and Experience”, Yale L.J. (1940);Google Scholar F.S., Cohen, “Transcendental Nonsense and the Functional Approach” (1935), 35 Col. L. Rev. 809, 825–829;Google Scholar Wu, John C.W., “Realistic Analysis of Legal Concepts: A Study in the Legal Method of Mr. Justice Holmes” (1932), 5 China L. Rev. 1,2.Google Scholar

4. See generally, discussions of the “Grand Style” of judging in Llewellyn, K., The Common Law Tradition: Deciding Appeals (Boston: Little, Brown, 1960);Google Scholar Gilmore, G., The Ages of American Law (New Haven: Yale Univ. Press, 1977) 23–40.Google Scholar

5. The Legal Realists were not unmindful of this problem, and many seemed to accept the idea that judges are often less than candid in the way they presented their opinions. For example, Gilmore called Justice Story’s opinion in Swift v. Tyson (1848), 41 U.S.(Pet.) 1 a “masterpiece of disingenu–ousness”, Gilmore, G., Ages of American Law at 33, while writing appreciatively of that opinion. Jerome Frank’s famous book, Law and the Modern Mind (New York: Coward-McCann, 1930) was in part an attempt to explain, in psychological terms, the apparent need of judges and lawyers to portray legal decisions in (to Frank’s mind) misleadingly rigid and determinate formulations. Of course, since the Realists envisioned a new form of legal discourse in which the policy grounds and social science evidence for judicial action would be clearly and honestly stated, they cannot really be charged with advocating judicial prevarication, merely tolerating it as a transitional step to the open and honest development of law as a social science.Google Scholar

6. Dworkin, R., Law’s Empire (Harvard: Harvard Univ. Press, 1986) (hereafter Law’s Empire).Google Scholar

7. Law’s Empire, supra at 79.

8. Id. at 78.

9. Id. at 79.

10. Id.

11. Id.

12. Id. at 151.

13. Id at 95.

14. Id.

15. Id.

16. Id. at 151.

17. Id. at 152 (emphasis in original).

18. Id. at 153.

19. Compare Wittgenstein’s discussion of the difference between reading and pretending to read in Wittgenstein, L., The Blue and Brown Books 2d. Ed. (Oxford: Basil Blackwell, 1960) 120–121 (hereafter The Brown Book).Google Scholar

20. Law’s Empire, supra n. 6 at 153.

21. Id. at 156–57.

22. Id. at 155.

23. Id. at 159.

24. Id. at 158.

25. Id.

26. Plato, The Republic, Book VIII.

27. Law’s Empire at 159–60.

28. Wittgenstein, L., Zettel (Berkeley: Univ. of Calif. Press, 1967) Para. 189. (hereafter Zetiel).Google Scholar

29. The Brown Book, supra n. 19 at 152.

30. Zettel, supra n. 28 at para. 190.

31. Law’s Empire, supra n. 6 at 270–71.

32. For further discussion of the relationship between cause, causal explanation and explanation in law, see Hart, H.L.A. & Honore, A.M., Causation in Law 17–20 (Oxford: Clarendon, 1959);Google Scholar Collingwood, R., Essay on Metaphysics, 285–327 (Oxford: Clarendon, 1972);Google Scholar Yablon, C., “The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation” (1985), 6 Cardozo L. Rev. 917.Google Scholar

33. The Brown Book, supra n. 28 at 102.