"Discovering Versus Making Law":
Thoughts from my colleague Stephen Bainbridge.
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"Discovering Versus Making Law":
Thoughts from my colleague Stephen Bainbridge. |
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So when one justice "discovers" some part of the constitution previously unknown, how can another justice, decades later, "undiscover" that part and "discover" a new part by overturning the old precedent? It's impossible - one or the other (or both) had to have been "made", not "found".
"Yeah, hey Columbus? I sailed over where you were and guess what, there wasn't a continent there, sorry." One of them's making something up.
Legal realism and legal formalism are theories of adjudication. I.e., how judges ought to decide cases and how judges do decide cases. A legal realist’s normative view, generally speaking, is that judging cannot be mechanical because sometimes competing legal norms support more than one result in a case. Legal realists will disagree on what to do when legal norms support more than one result. Some legal realists might believe you ought to do what is most efficient. Other legal realists believe you ought to do what is just. Moreover, a legal realist’s descriptive view is that, as a matter of fact, non-legal norms do decide cases.
Then we have legal formalists. Their normative view is that judging is fairly mechanical and that legal norms almost always (if not always) support one result in any given case. A judge ought to simply do what the legal norms require him or her to do. Most legal formalists, however, do not believe judges, as a matter of fact, do this. Instead, they believe that judges use non-legal norms, at least some times, to decide cases. In other words, they agree with legal realists’ descriptive view of the way the world actually works. Originalists are legal formalists. They believe if you simply follow the original intent (or public meaning or whatever) of the constitutional, there will only be one answer to any given constitutional question and judges ought to try to figure that out and ought to reach that result.
None of this has anything to do with what the law is -- i.e., whether the law is “out there” to be discovered. That requires a “theory of law.” Most people, legal formalists and legal realists, are legal positivist, meaning they think that the law is created through social practice and that there is no necessary connection between law and morality. Put simply, the law is not “out there,” but instead comes into being when certain social practices make it up. A natural law theorists believes the law is always out there and doesn’t require any human being to do anything. The law is “out there” because there is a necessary connection between law and morality and since morality is “out there,” so is law.
I have not read Danforth yet, so I don’t know how much all of this analysis relates to the opinion. But the commentary on it is confusing legal realism with legal positivism. What’s weird is that people seem to believe that originalism (which is a theory of legal formalism) somehow means that the law is always “out there to be discovered.” In other words, they seem to believe that originalists are all natural law theorists, but originalists are legal postivists, so they agree with legal realists on this point: the law is not out there in existence already, waiting to be discovered.
Like Erik the Red?
So when one justice "discovers" some part of the constitution previously unknown, how can another justice, decades later, "undiscover" that part and "discover" a new part by overturning the old precedent? It's impossible - one or the other (or both) had to have been "made", not "found".
The same way a mathematician can find/discover a proof for Fermat's Last Theorem, have it accepted for a few years, but then have another mathematician find a flaw in the proof. FLT is either true or false, it can't be both. Our understanding of its objective truth or fasleity is only as good as the proof. Ditto with legal opinions, they're only as good as the logic, factual basis, prior precedent, and conclusions drawn therefrom.
Maybe all this can be simplified by asking what the Constitution is supposed to do, and what it's supposed to be. I think most would agree that it's supposed to be the instructions and standard operating procedures for America. Let me ask you a question. Do you think every single executive and legislative action our government is currently taking, not inconsistent with existing and controlling caselaw, is proper under the Constitution?
Another question, which goes to the heart of the matter, is: what does "constitutional" mean? Does it mean "what the highest court to have addressed the matter says" or does it mean "what the Constitution requires"? I answer it with the latter. I think Justice Stevens, and the Justices who signed on to his opinion, clearly do as well. I believe this is what GV is getting at (please correct me if I'm wrong, GV).
You can repeat your point, and even take the dramatic step of putting it in bold, but I think you're wrong. Legal realism is generally understood not as a normative theory, but as a descriptive one: it is interested in what the Courts do, quite apart from what they *should* do.
This resolves a paradox. The very first item in Russell Kirk's famous list of characteristics of the conservative temperament is the belief in a transcendent moral order. This suggests that it ought to be the conservatives who are the legal realists, constantly appealing to this transcendent moral order to resolve difficult cases. However, this confounds theory of adjudication with theory of law. The conservative's theory of law may insist that law is discovered, not made, but this has nothing to say about how law is adjudicated. For the typical conservative, the question of the theory of law is never reached, because his theory of adjudication, based on other characteristics of the conservative temperament, incline him towards legal formalism.
But again, this is entirely irrelevant to the questions people are raising with respect to Danforth. The questions raised in Danforth are not about theories of adjudication. That is, they are not asking how courts ought to reason to a legal conclusion. Legal realism and formalism are about how courts should and do reason to a legal conclusion. I won’t bold it because that’s apparently offensive to you, but I do wish you’d actually think about that point. The questions people are asking here is about the nature of law. What is law? Was Miranda “law” 100 years ago? That goes to theories of law, which gets us to the debate of natural law versus legal positivism. Legal realism and formalism are not theories of law, even though legal realists are generally legal positivist. Likewise, even though originalists, who are legal formalists, are generally legal positivists, originalism is not a theory of law.
It seems to me, as a layperson, that the activity of discovering new consequences of old laws is possible in principle, and I can't offhand think of any good reason why the courts wouldn't have the authority, and perhaps occasionally the duty, to engage in this activity.
A lot of people seem to think this is about whether it's possible to discover a new part of the constitution, putting that question aside, can't we more charitably read Stevens and others as talking about discovering knew consequences of the constitution?
The difficulty with your theory is that the issue in Danforth is the effect of an adjudication -- that is, a "new rule" that the Court has announced in a prior decision. Thus, Stevens treats theories of adjudication and theories of law as the same. Note what Stevens say: "What we are actually determining when we assess the 'retroactivity' of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought." The new right and new rule are the same, in his view; when a Court announces a new rule, it has newly announced a right.
Or so it seems to me from the passage, at least. I have a feeling that you will say I still have no idea what I am talking about.
Thanks,
Orin
"Many legal realists have normative theories," but that doesn't mean that what is generally considered legal realism is a normative theory. Most people I know who have the misfortune to know or care about these things, whether lawyers, law profs, or other academics, take legal realism to be a particular descriptive interpretation of the way judges actually go about deciding cases. From this description, it is possible to construct a normative theory, but "legal realism" itself does not purport to say that it is a normative understanding of how judges should adjudicate.
There are theories of law (like natural law v. positivism), descriptive theories of adjudication, and normative theories of adjudication. Legal realism belongs to the second camp, but not to the first or to the last.
By the seventeenth century common-law thought had been highly developed and revolved around two important, if variant, principles. First it was held that the common law was a reflection of natural law and therefore inherently equitable. According to Sir Edward Coke, the greatest of the common lawyers, this made common law the superior form of law in England and its courts the highest judicature.
Secondly, Coke argued that an understanding of the common law was an artificial process of reasoning acquired through training and study and was therefore the preserve of the common lawyers. The common law was not simply the practice of equity as any reasonable person could understand it, nor the compiling of precedents as any experienced person might remember them.
On more than one occasion these principles seemed reducible to the position that the common law was what Sir Edward Coke said it was, but behind them was the belief that the common law was a living law that metamorphosed over centuries. The English constitution was not just unwritten: it could not be reduced to writing.
Plus ça change ... It also occurs to me that it was asking for trouble to graft a written Constitution onto a common-law system of judging.
Mathematical realism, like realism in general, holds that mathematical entities exist independently of the human mind. Thus humans do not invent mathematics, but rather discover it, and any other intelligent beings in the universe would presumably do the same. In this point of view, there is really one sort of mathematics that can be discovered: Triangles, for example, are real entities, not the creations of the human mind.
I would guess that the issues pro and con are quite similar to those in law.
In any event, it seems that we agree that legal realism (whether you view it as simply descriptive or home to a large number of normative theories that have an important shared premises) is not implicated in determining what the law is, which requires a theory of law. As you put it, it’s a different category of questions than either a normative or descriptive theory of adjudication. In other words, discussions of legal realism or legal formalism (including originalism) is entirely irrelevant to the quesiton of what hte law is.
In other words, when you ask whether Miranda was the law 100 years ago, you need to have some sort of theory on what is the law. If I had a time machine and went back to 1900 and asked, is Miranda the law? I need a theory of what the law is. I.e., a theory of law. If I’m a legal positivist, the clear answer is no, it’s not the law. If I’m a natural law theorist, the answer could be yes because the law is “out there,” waiting for a court to discover it. If Miranda is part of the natural law of what is the “right” law, anyone who had access to “the law out there” in 1900, could determine that yes, Miranda is the law in 1900. But whether the Court in Miranda reached its result by consulting strictly legal norms or used legal and non-legal norms is irrelevant to the question of whether Miranda is the law in 1900.
I think the analogy you suggest b/w arguments over the nature of mathematics and arguments over the nature of law is tenuous. Law necessarily has a social component. Mathematics doesn't. Just consider that mathematics is formal. Now, (legal) formalists would contend that so is law. But the disanalogy is more obvious with an exmaple.
A ring in mathematics is a set S together w/ 2 binary operators + and * satisfying the following conditions: additive associativity, additive commutativity, additive identity, additive inverse, and left and right distributivity. Multiplicative associativity is also, as a standard matter, required in the definition of a ring, although non-associative rings exist. That's the standard definition. Others may add additional constraints. So, for example, if you require multiplicative commutativity, you're describing a commutative ring. All those properties are, of course, capable of formal definition, of the following type: For all a,b,c in S, (a+b)+c=a+(b+c). Where "in" has a specific formal definition as well. That was the definition of additive associativity.
A contract is: mutual assent supported by consideration. Mutual assent: offer &acceptance. Consideration: a bargained-for exchange. We could continue to drill down through those concepts of contract, and we'd never approach the level of formality or generality we achieved from the start when discussing mathematical rings. Because whether we discover or create mathematics, mathematics involves entities capable of formal description &manipulation. Law involves human beings.
A long, rambly way of saying, just be careful with your analogies. I see how it somewhat applies, but it's not strong enough to hang your hat on, certainly.