Law as politics: Progressive American Perspectives
§ US focus on juris can be seen as different- due to its constitutional framework (common law’s validity comes from its conformity with the constitution).
§ The vagueness of such principles means there is a wide range of interpretations. Therefore must give literal meaning.
§ Jurists are lumped together, often by their opponents, as forming a school. Groups. One such group is the Progressive movement– Legal Realists (LR) (1920’s-30’s) and critical legal studies (CLS) movement (1975-90)
§ In US term ‘progressive’ implies political views that are associated with moderate leftist parties. LR and CLS both criticism and challenge established legal institutions, rules and practices from a progressive perspective.
§ The political character of Judicial Decisions
§ LR gained prominence through insisting there was more to study of the law than learning legal doctrines and rules (equally imp to study the institutions and practices in order to grasp how they function). In today’s terminology realism would be classed as ‘socio-legal studies’.
§ LR also criticised theories of law that suggested that the content of the law rests ultimately on fixed principles of justice. They insisted that the law is a means to achieve social goals that can change. They thus called for the study of ‘law in action’, not just looking at law from books and gaining scepticism about the inevitability of the law.
§ Karl Llewellyn (Realist writer) stressed the ‘common points of departure’ of LR:
o The conception of law in flux, of moving law, and of judicial creation of law
o Conception of law as a means to social ends and not as an end in itself; parts need to be examined for their purpose, and for their effect, and to be judged of their relation with each other
o Conception of society in flux, and in typically faster flux than the law, so that the probability is always given that any portion of law needs re-examination to determine how far it fits society
o The temporary divorce of Is and Ought for the purpose of study
o Distrust of traditional legal rules and concepts insofar as they purport to describe what either courts or people are actually doing (the constant emphasis on rules as ‘generalised predictions of what courts will do’) (descriptive side)
o Distrust of the theory that traditional prescriptive rule formulations are the heavily operative factor in producing courts decisions. Involves adoption of the theory of rationalisation for the study of opinions
o Belief in the worthlessness of grouping cases and legal situations into narrower categories than in the past.
o Insistence on the evaluation of any part of law in terms of its effects, and an insistence on the worthlessness of trying to find these effects.
o Insistence on sustained and programmatic attack on the problems of law along any of these lines.
§ Emphasis therefore on need to study the effects of law in practice. The propositions reveal 2 kinds of scepticism associated with LR:
o Rule scepticism
o Fact scepticism
§ Rule scepticism
§ Judges don’t reach their decisions in a formalist way by application of relevant rules. Need to look behind legal rhetoric to find real motivating factors for a decision. Legal reasoning should be regarded as a process of rationalization of a result rather than the reason for the outcome. The selection of the result by the judge will depend on broader factors than legal rules. The reasons given for the decision in the form of rules and precedents may explain some of the motivation of the judge and help to some extent in the prediction of the result.
§ Their main function lies in their retrospective justification- this is to present the judicial decision as legally right and inevitable. To predict accurate results one needs to understand not only the legal doctrine but also the attitude or political opinions of judges.
§ Llewellyn: ‘Rules…help you to see or predict what judges will do…that is their importance… but you will discover that you can no more afford to overlook them than you can afford to stop with having learned their words.’
§ Fact scepticism
§ When determining the facts of the case it is difficult for a judge to avoid evaluations and interpretations of events. When he presents the case, likely to do so in a light that shows his likely outcome. Realists argue that the facts are selected and described to a rhetorical justification of the judge’s decision, and to a construction of events so that a relevant legal rule apparently determines the result.
§ If rule and fact scepticism were combined it would mean that judges manipulate rules in order to justify a result they wanted to reach, therefore making law. This view often attributed to LR but the LR preferred to argue from a point described as policy science. They believe that with the knowledge provided by new disciplines of the social sciences, it should be possible to guide the courts towards rational and justifiable results.
§ Law is a policy science that should be applied with the best available info and consideration of social & political considerations. Can determine rules with ref to their purpose (purposive interpretation). This supposes that it’s possible to reach a conclusion abut the purpose of a law, which then confines the possible meanings of a legal rule.
§ Purposive approach assumes there is a no. of compatible purposes which can be used. Looking at the purposes entails looking at sociological info about the composition of society and economic analysis of the effects of different interpretations. American LR paved way for openness in legal reasoning.
§ Link between this instrumentalist analysis & developments in US in early C20th.
§ Under label of ‘pragmatism’, philosophers such as John Dewey and William James attacked idea that there were any absolute moral truths. They argued that moral truths were matters of opinion, legitimated and imposed by powerful groups. Therefore pragmatists were not concerned whether some moral precepts were true, but asked whether such a precept was useful and contributed to social and political reform. Drawing on this LR could find support for their criticisms of formalist legal reasoning (which assumed law was based on fundamental principles) and could also find support for their instrumental approach to legal reasoning.
§ This meant that areas of laws have been transformed by LR. The area of conflict of law has been transformed by Walter Wheeler Cook. This branch of law addresses primarily q of what rules national legal systems should apply to a dispute with an int. element. Cook argued that such decisions should be made instrumentally, with a view of achieving justice and in pursuit of a coherent social policy.
§ LR criticized for their legal positivism and moral relativism. By rejecting idea that law rests on fixed principles of justice, but being an instrument of government for social ends, LR provoked criticism from those supporting natural law. It was seen as a dangerous theory, paving the way for totalitarian systems to use the legal system without constraints. Conservative’s regarded it a support for Roosevelt’s extensive use of the law to reshape society in his New Deal policies as evidence of their support for state powers without limits. Even Fuller (sympathetic to social regulation) saw it as dangerous as it denied the moral foundations of law.
§ Realist Influence in the UK
§ In UK unwilling to assess political values of senior judges. In US judges in Supreme Court selected by President for their political orientation.
§ This may change in UK as judges have to exercise their powers under HRA.
§ Griffith: ‘judges cannot be politically neutral because they are placed in a position where they are required to make political choices…their interpretation of what is in the public interest and therefore politically desirable is determined by the kind of people they are…’
§ Law as politics
§ Once it is taken that decisions are reached instrumentally in the pursuit of particular purposes, possible to state that legal reasoning is political.
§ This applied to all cases- according to LR judges approach question with their own set of values and ideals. These values can be linked together in a coherent set of political ideas, so all decisions have a political character.
§ The Incoherence of Legal Reasoning
§ As well as linguistic indeterminacy LR also criticism formal models of legal reasoning.
§ When looking at precedents clear that there are is the use of conflicting rules. In the US with diff jurisdictions, appeared that same legal doctrines inherited from England could lead to diverse rulings.
§ This allowed Realists to argue that the indeterminacy of legal reasoning was deeper than the vagueness of words. Prob- no agreement about correct rule, courts often had to choose between competing rules. Therefore linguistic formulation as well as meaning of the governing legal norm was indeterminate.
§ This element meant that judges who tried to claim the CL was coherent and consistent had to look for these qualities at a higher level of generality.
§ Defence against LR attack on formalism is to insist that at the level of principle, precept, purpose, or concept, both coherence and consistency could be discovered in the law (Dworkin’s Law’s Empire provides such a defence)
§ When CLS took over theme of indeterminacy of legal reasoning in 70’s they addressed diff targets from LR. Instead of attacking formalism in rule application, they had to argue that the appeal to the underlying principles couldn’t establish the coherence and determinacy of legal reasoning.
§ They used variety of methods to show indeterminacy but can still differentiate from LR.
§ LR stressed the extent decisions depended on considerations outside legal rules the CLS emphasized the contingency of the legal reasoning itself. The legal arguments were indeterminate in themselves, not only because of the vagueness in lang but deeper than that- because of the conflicts of underlying principles or purposed of those rules. The contradictions in precedents show fundamental disagreements about the policies on which the law should be based.
§ CLS- these conflicts lie int eh foundations of the legal reasoning and cant be reconciled. In practice, one principle is treated as dominant, other as exceptional, so the contradiction isn’t seen ton pose difficulty for the coherence of the law. But the presence and occasional appeal to the disfavoured principle reveals the underlying tension in legal thought is never resolved.
§ Kelman: ‘standard 4 point critical method has been used. First, the Critics attempted to identify a contradiction in liberal legal thought, set of paired rhetorical arguments that both resolve cases in opposite, incompatible ways. Second, Critics tried to demonstrate that each of the contradictions is pervasive in legal controversy, even in cases where practice is so settled that we nearly forget that the repressed contradictory impulse could govern the decision at issue.Third, Critics have attempted to show that mainstream thought invariably treats one term in each set of contradictory impulses as privileged in 3 distinct senses: the privileged term is presumptively entitled as a normative matter to govern disputes; it is simply assumed, as a descriptive matter, to govern the bulk of situations; and departures from the purportedly dominant norm, even if they are frequent, are treated as exceptional, in need of specific justification, Fourth, the Critics note that the ‘privileged’ impulses describe the program of a remarkably right wing, quasi-libertarian order…’
§ CLS movement doesn’t deny that judges attempt with some success to justify their interpretations of the law with ref to the coherence of the underlying principle. Nor do they deny that it is possible to predict the outcome of a dispute. They argue that the coherence or integrity of the law is always an illusion, because it involves the marginalisation of other policies that don’t fit.
§ Can be seen in contract law- contract requires consideration. LR- if courts want to enforce promise on grounds of fairness they will invent consideration. CLS writer might add that judges may, on occasion, enforce promises on the basis of another legal doctrine.
§ Duncan Kennedy, CLS writer attempted to portray the contradictions in legal doctrine as possessing a common root- a fundamental contradiction in liberal legal thought. He states: ‘most people in American legal culture believe that the goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it. Others (family, friends, cultural figures, state)n are necessary if we are to become persons at all- they provide us the stuff of our selves and protect in crucial ways against destruction… The fundamental contradiction- that relations with others are both necessary to and incompatible with our freedom.’ He tries to show legal reasoning as an unceasing effort to confuse, deny or hide the contradiction. Legal reasoning achieves this partly through its attachment to doctrinal categories, such as contract and tort, which serve to create an illusion of a permanent and coherent resolution of the fundamental contradiction.
§ Don’t need to accept that there is a single fundamental contradiction in order to pursue the argument that legal reasoning is riddled with deep, unresolved tensions.
§ There are competing and contradictory roles of intentionalist and determinist views of human agency for the purpose of criminal responsibility. Intentionalist view regards human actors as always free to make choices, and that criminal responsibility should be confined to instances where the individual has chosen to perform the prohibited act. A determinist analysis emphasises the way in which human action always occurs within social structures, and is casually connected to prior events. Determinism tends not to condemn predetermined events. Both of these views are present in legal reasoning but the determinist view of absolving people from criminal responsibility is suppressed.
§ Kelman: ‘by concrete construction, I refer to a process by which concrete situations are reduced to substantive legal controversies: t refers both to the way we construe a factual situation and the way we frame the possible rules to handle the situation. What follows is rational rhetorism- the process of presenting the legal conclusions that result when interpretive constructs are applied to the ‘facts’. This process is the ‘stuff’ of admirable legal analysis: distinguishing cases, applying familiar policies and emphasizing the degree to which we can rely on the least controversial underlying values. These techniques are so complex that there is a powerful tendency to elevate falsely the importance of intellect in actual decision-making, to fail to see the interpretive construction that makes the wise posturing possible.’
§ ‘legal argument can be made only after a fact pattern is characterised by interpretive constructs. Once these constructs operate, a single legal result seems inevitable ’ Kelman looks at these in more detail:
§ A. Four unconscious Interpretive Constructs: unconscious Interpretive Constructs shape the way we view disruptive incidents, but they are never actually identified. Basically 4 forms, 2 dealing with ‘time framing’ and 2 dealing with problems of categorisation
§ 1. Broad and Narrow time frames: prosecute people for crimes they commit. These things have a history. Things occur before or after incidents that are relevant to our judgement of what perpetrator did. Interpreter can focus solely on the isolated criminal incident, as if all we can learn of value in assessing culpability is seen with that narrower time focus. The choice b/w these 2 time frames keeps us from having to deal with political q’s arising from one conscious interpretive construct- the conflict between intentionalism and determinism. Conduct often deemed as involuntary (or determined) rather than freely willed (or intentional) because we don’t consider D’s earlier decisions that put him in that position. Conversely, conduct that could be viewed as freely willed if we looked only at the precise moment of the criminal incident is sometimes deemed involuntary because we open up the time frame to look at prior events that seem to compel D’s conduct at the time of the incident. The use of ‘time framing’ as interpretive method blocks the perception that intentionalist or determinist issues could be substantively at stake. If someone has convinced themselves that the narrow time frame is the right approach, there is no background data one can use. The interpretive ‘choice’ b/w narrow and broad time frames affects not only doctrinally tricky cases but also ‘easy’ cases because narrow time-framing fends off, methodologically, the possibility of determinist analyses.
§ 2. Disjoined and unified accounts: many situations require a broad time frame. The earlier ‘moment’ may be the time D made some judgment about the situation she was in, which may have contributed to the decision to act criminally. (e.g. D may have negligently believed to use deadly force to defend herself and then she intentionally kills someone, having formed that belief). Once we agree to look at earlier moments must decide whether to disjoin or unify the earlier moment with the alter moment. Once this decision is made q of criminal culpability is forever biased. Is a negligent decision to kill followed by an intentional killing a negligent or intentional act? Sometimes unifying 2 separate incidents allows us to avoid making hard to justify assertion that the 2nd incident was determined by the 1st. often, other interests are at stake in separating or joining a series of incidents.
§ 3. Broad and narrow views of intent: each time someone acts, in the absence of a claim of accident, he intended to do the acts he has done. Difficulty in categorizing those acts because an individual set of acts may be an instance of a number of diff categories of acts.