Abstract
Legal realism is popularly known for its hostility to legal doctrine. In the familiar narrative, the realists showed that legal doctrine does not, and cannot, constrain judges from using existing legal materials to reach virtually any outcome they want. As such, doctrine only serves to hides and obfuscate what is better discussed openly. The purpose of this essay is to complicate this familiar story. I focus on one contemporary take on legal realism that argues that an open discussion of values will give the law greater determinacy. I counter this view, first, by showing that it does not, in fact, fit the views of the legal realists, but reflects a modern view that fits contemporary (American) legal discourse. I also argue that it’s very unlikely that such a view would improve the law’s determinacy, and that it is likely to have undesirable consequences. I then propose an alternative, which I trace to work by some of the legal realists. This approach gives a clear role to legal doctrine and, so I argue, is normatively more appealing than the view that minimizes the role of doctrine.
Thanks to Charles Barzun for his comments on an earlier and very different version of this essay, as well as to multiple conversations over the years on some of the issues discussed here.
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Notes
- 1.
Arnold (1935, p. 752): ‘In the science of Jurisprudence all of the various ideals which are significant to the man on the street must be given a place. It must prove that the law is certain and at the same time elastic; that it is just, yet benevolent, economic; yet morally logical. It must show that the law can be dignified and solemn and at the same time efficient, universal and fundamental, and at the same time a set of particular directions. Jurisprudence must give a place to all of the economic, and also the ethical notions of important competing groups within our society, no matter how far apart these notions may be. In its method it must make gestures of recognition to the techniques of each separate branch of learning which claims to have any relation with the conduct of individuals, no matter how different these techniques may be.’
- 2.
In the case of Cohen, Dagan (2013, p. 47) quotes him saying that ‘Moral judgment will always be necessary “in order to render normative significance to brute facts”’. The quote in question is not found in the work cited, and I did not find it elsewhere. In fact, in the essay cited, Cohen (1934, p. 42) expressed a rather different sentiment: ‘Modern ethics seeks to attain moral knowledge through the methods of science… .Perceived values are brought into a system, in modern ethics, in the same way that perceived facts of color, weight, size, etc., are brought into a system in the science of physics’.
- 3.
With respect to value pluralism Dagan (2013, pp. 162–163) makes both the ‘descriptive’ claim mentioned in the text, but also argues that private law institutions should promote a diversity of values. But one may endorse value pluralism, and still think there are good institutional or political reasons why law (or just private law) should only be concerned with promoting a subset of those values.
- 4.
Interestingly, with respect to the argument developed in Sect. 3, Mill seems to have endorsed a view that somewhat resembles what I call ‘opacity’ with respect to the promotion of personal happiness. In his Autobiography (1873/1989, p. 117) Mill wrote: ‘I never…wavered in the conviction that happiness is the test of all rules of conduct, and the end of life. But I now thought that this end was only to be attained by not making it the direct end… .Aiming…at something else, [people] find happiness by the way’.
- 5.
In fact, welfarist theories have been criticized for wrongly assuming that increasing the number of available options will always promote welfare (Schwartz 2016; cf. Dworkin 1988, ch. 5). This criticism affects Dagan’s view as well, for if it is sound—and it is supported by extensive empirical evidence—more choice can actually undermine autonomy.
- 6.
If Dagan were to argue that this view is a form of realism, only one that favors certain values (stability or certainty) over others, he would in effect be arguing that doctrinalism is also a form of realism (albeit perhaps a normatively unappealing one), not that it is impossible.
- 7.
Whether Cardozo was a realist is sometimes contested. I think he was an exponent of traditional legal realism. Dagan (2013, p. 3) mentions him as one of the proponents of his version of legal realism.
- 8.
Indeed, I speculate that one of the reasons why monistic economic theories of law attracted so many American academic lawyers was the perception (justified or not) that they could help regain the lost determinacy of law.
- 9.
I consider Peter Birks a defender of closeness, but these words also support opacity. Similar arguments come from rather different corners. Sunstein (2018, p. 123): ‘A great virtue of rules is that they limit permissible grounds for both action and argument… .[I]n a heterogeneous society, containing people of limited time and capacities, this is an enormous advantage. It saves effort, time, and expense. By truncating the sorts of value-disputes that can arise in law, it also ensures that disagreements will occur along a narrowly restricted range.’ Raz (1986, p. 58): ‘the practice [of reliance on opaque rules] allows the creation of a pluralistic culture. For it enables people to unite in support of some “low or medium level” generalizations despite profound disagreements concerning their ultimate foundations, which some seek in religion, others in Marxism, or in Liberalism etc.’
- 10.
Appeal to intuition is of course a familiar part of traditional legal realism (Hutcheson 1928; Frank 1930, pp. 102–104). This appeal is understandable, for given the likely identity of judges, their intuitions will typically broadly match mainstream community values. By contrast, scientific legal realists were much less enamored of the idea. Cohen (1934, pp. 45–46) is illustrative: ‘From the standpoint of modern ethics conscience cannot be viewed as a final source of moral wisdom. Lawyers do not need to be told that conscience varies among men no less than the size of the human foot’.
- 11.
Frank (1930, p. 143) also appealed to shared community values as a means for generating uniformity, but he noticed its dark side: ‘it is perhaps just possible that we could get stereotyped [i.e., similar, certain] results from our judges by picking stereotyped men for the judicial office’.
- 12.
This point should not be overstated: This argument depends on comparing the institutional strengths and weaknesses of judges against those of other lawmakers, something that cannot be determined a priori, and on which the circumstances of different countries may yield different answers. In a country with a corrupt legislature, judge-made law may be superior.
- 13.
No less relevant for a complete institutional analysis, although perhaps less naturally classified as doctrinal devices, are rules regarding panel size and majority rules, judicial opinion technique (single opinion, seriatim, opinion of the court), judicial appointment procedures, norms regulating judicial impartiality, and other ways that shape the environment in which judges work.
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Priel, D. (2021). Legal Realism and Legal Doctrine. In: Chiassoni, P., Spaić, B. (eds) Judges and Adjudication in Constitutional Democracies: A View from Legal Realism. Law and Philosophy Library, vol 135. Springer, Cham. https://doi.org/10.1007/978-3-030-58186-2_8
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