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Following The Rules?

Two Classic American Ways of


Understanding Judging

Formalism
Realism
Note: essentially stereotypes. Judges may move
between both poles.

Formalist Judges
Two claims:
A claim about the nature of judicial reasoning - Adjudication is autonomous
from other forms of reasoning. Law is a closed system of rules and judges
can reach the required decision without recourse to any non-legal normative
considerations, e.g. morality/philosophy.
A claim about the structure of legal rules - Legal rules are rationally
determinate if applied logically they can justify only one unique outcome.

Habits of judging:
Mechanical the giant syllogism machine
Tendency to purify and clean up the rules, insisting on coherence.

Think for instance of Neuberger in Danesh


Political legitimacy outcome: If judges simply apply pre-existing law
to new situations, then they dont make law as society changes.
Judicial power is limited judge speaks of law, not religion, power or morality.
(But note possibilities for action Portias pound of flesh.

Judges leave change to Parliament.


Rules are fixed and announced beforehand.
Law itself is self-contained.
Law safely and validly applied by officials without the worry of politics.
Promises an escape from ideological contest into the realm of law? Reassurance in the face of openended conflict.

Is Adjudication Really
Autonomous?
Last 3 lectures
Fact Scepticism Applying the Rule to What?
Selecting
Narrating

Rule scepticism
Precedent Which Rule?
Categorisation
Analogies

Statutory Interpretation What Is the Rule?


Language
When the Rules Run Out:
Intention of Parliament
Substantive purposes

Are Doctrinal Rules Really


Determinate?
Indeterminacy:
Less about the ambiguity of rules
Vagueness of language, multiplicity of human
contingencies

than about the availability of multiple


conflicting/inconsistent rules (and exceptions)
from which to choose e.g. choosing between
possible versions of the ratio.
And conflicting pairs of stock policy arguments
See e.g. Kennedy on individualism vs altruism

More on these ideas in upcoming lectures.

Realist Judges
Not entirely rule-driven
Do not assume autonomy of legal reasoning.
Do not assume determinacy of legal rules.

Habits of judging: Outcome-driven.(But from what


perspective?)
Law as a means to an end.
Openly selecting between rules
Less worried about generating exceptions; interested in conceptual innovation and
adaptation of law to social change.
Reasoning backwards from the facts?

Take advantage of indeterminacy (pluralism) in legal rules to find


alternative branches of thought.

Think, for instance of Hale in Yemshaw.


Political legitimacy outcome: Clear that judges make law.
Unaccountable political decision-making?
Rules no longer describe with judges are actually doing
Can attempt to predict, using rules, how a case will be decided, but cannot be
certain.
Suggests even formalist judges are concealing power in narrative
appeals to doctrinal authority? Simply manipulating legal rules?

Further Reading
Llewellyn, Some Realism About
Realism-Responding to Dean Pound,
44 HARV. L. REV. 1222 (1931)
Veitch et al. Jurisprudence: Themes
and Concepts Part III
Penner and Melissaris, McCoubrey
and Whites Textbook on
Jurisprudence Chapter 9
Tamanaha, On The Rule of Law.