Foundations of Law Jurisprudence - Karl Llewellyn PDF

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Foundations of Law / Jurisprudence - Karl Llewellyn Some realism about realism: Llewellyn says a number of times that nothing said by realists that hasn't already been said. They are just applying the law in a more determinate, systematic way. Llewellyn's methodology for analysing classical legal formalism: Focus on how law really works, rather than conceptual models of how it ought to work ● Legal realism stresses need for more empirical studies into how law works rather than accepting ideal concepts ● Legal scholarship should look at what is considered in trial courts and administrative agencies, not just appellate courts Empirical facts - like epistemological positivism o Legal realism and positivism both part of Enlightenment Realists see empirical facts as allowing determination of how law works. However, thought moral and political considerations cannot be removed when judge is applying the law What empirical facts should be considered? o Positivists think those that separate valid legal rules o Realists think those that explain how judges make decisions Realists say positivists not sufficiently positivist. Instead of focusing on systematics, now into idealistic heaven Results of applying methodology: The indeterminacy of law thesis Some of the critiques are developed at length by Frank o Judge's personality affects decisions o Finding of fact affects decisions o Written decision which looks like decision reached in a formalist way does not describe how decision was actually reached. Rather, it is a rationalisation of a decision reached in a not so logical manner Llewellyn's arguments that legal rules cannot operate in the way legal formalism describes o Cannot deliver objective answer that judge can reach mechanically without bringing in politics and morality. o Less possibility of prediction that traditional positivism would lead us to suppose Rule scepticism: Why legal rules cannot prevent pervasive indeterminacy Paper rules, multiple rules, and manipulation of rules Paper rules: The language of statutes and common law rules

Many legal rules too broad and abstract, so different results could be reached in different factual situations, but all applying the same rule o Do not produce applications most lawyers agree upon o Obscure how law will be applied in practice o In making factual observation that there may be supposed paper rules, a realist is not going to criticise such rules o Formalists would be appalled by indeterminacy, but realists see the malleability as functional Multiple rules: Why are there so many rules in play? Typically, more than one rule will be available to judge Law has two faces - available authoritative premises are two rules and they are mutually contradictory Decision maker must exercise choice as to which rule to pick Have to make decision on the basis of other factors, and these other factors are what legal realism wants to uncover This is not a criticism, but a source of the beneficial indeterminacy of law - an explanation of how the law responds flexibly to changes is because there are choices - can pick one with the best result But can present the outcome as a likely application of the rigid law Why are there so many rules in play? If law is a rational system, why is it not consistent? Manipulation of rules: Instead of having multiple rules, situation where only one rule can apply. Legal realist view is meaning is not fixed Past precedents can be revised and revisited. Use manipulation techniques that allow ratios to be widened and or narrowed Past is not ignored, but is reconceived. Can be redescribed in way that produces new rule However, we cannot ignore the past and strike out in a completely new direction as this is not possible. Lawyers are compelled by the past - one of our foundational commitments as a profession But we have seen that the shape of the past that determines the present can change the shape of an established rule o Put history as the dots in a scatter pattern - can use precedent manipulation techniques to alter the shape of the rule, or connect them in such a way that reveals a new rule that is declared to have always existed Can use manipulation techniques to change shape of rule or create a new rule that is viewed as always being there Result is not the stability that formalists desire - legal past is not stable

Llewellyn quote on manipulation of rules: "Sometimes it is a question of carving out hitherto unnoticed exceptions. But sometimes the results force the worker to reclassify an area altogether." Example of manipulation of past precedent in a way that produces new rule: Lord Denning was notorious for making this kind of interpretative move. He collects what are previously identified as random minor exceptions to a general rule, and then redescribes these things so that there are manifestations of a completely new rule no one had seen before. Could argue that a new pattern of law is visible in the past cases. This is the way he introduced inequality of bargaining power into contract law and promissory estoppel. Conclusion from sceptical position: stare decisis is an engine of change: This is not a mechanism for seeing that present decisions are consistent with the past - rather, can use it to alter the past Mechanism for achieving legal change and flexibility that simultaneously allows us to assert that we are not changing anything o Lawyers present themselves as being completely constrained by past precedent and believe that to be true at the same time we are rewriting that past with results in the present Llewellyn: "Stare decisis has in the past been, now is and must continue to be, a norm of change and a means of change as well as a norm of staying put and a means of staying put." Precedent is a way of change as well as a way of refusing change Second conclusion from sceptical position: judicial choice and creativity cannot be eliminated: Judicial choice has to be exercising in choosing how to apply a general paper rule to a situation, and which rule to apply Choice has to be exercised in choosing to apply past rule to rewrite the future Judges cannot be tightly constrained in the way formalists require What are the factors that influence this exercise in juridical choice and creativity? o This empirical question is the one that legal realists are most interested in. want scientific reasoning. Realists found factors such as beliefs about public policy, what social justice requires in the case, beliefs about social consequences on society, beliefs about what particular specialised commercial communities would reasonably expect to happen etc. Llewellyn: "Only policy considerations and the facing of policy considerations can justify 'interpreting' (making, shaping, drawing conclusions from) the relevant body of precedent in one way or another."

Third conclusion from the sceptical position: morality and politics are not essentially separate from the law: Since policy considerations influence judicial choice, politics and morality cannot be separate from the law when it comes to judges applying the law Since judicial choice is pervasive due to the indeterminate nature of rules, and since the inevitable judicial choice will be shaped by background beliefs, realists conclude that separation of law and morality in positivist view cannot be correct Reducing legal indeterminacy: replace paper rules with real rules: Legal indeterminacy resulted in openly broad paper rules (statutes and common law rules) Could we replace them with narrower rules directed at specific situations? o Would give the rules greater predictive power as would identify the real factors at work in decision Another round of the old jurisprudential contest between local and general and between the particular and the abstract Realists felt formalist approach needing certainty and prediction led to fixation on ideal pictures - Went back to empirical reality of law, even if that is messy and inconsistent Llewellyn on replacing paper rules with real rules to reduce indeterminacy: Llewellyn: Realist belief in grouping cases and legal situations into narrower categories than has been the practice in the past, connected with the distrust of verbally simple rules which cover dissimilar and non-simple fact situations Llewellyn gives contract examples - "perhaps contracts in what we may broadly call family relations do not work out in general as they do in business. If so, the rules - viewed as statements of the courts of judicial behaviour - as predictions of what will happen - need to be restated." Llewellyn thought that if legal rules identify the real reasons for the decision and are narrow enough to identify a generally family of cases consistent with common-sense etc. then they would be good predictors of what the court would do in future Llewellyn thinks problem with rule scepticism and paper rules can be reduced to a significant degree. Reducing legal indeterminacy: embrace a new understanding of 'legal certainty': Can reduce formalist worries about indeterminacy and can increase amount of uncertainty available by simply changing the definition of legal certainty Instead of certainty meaning lawyers predicting what judges will do based on past precedent, it meant that the expectations of lay people engaged in commercial practices would be upheld by

the law and that this would achieve the result that those lay people would expect with their background histories that would deliver certainty to them In achieving laymen's certainty, might require judges to modify what the legal rules as understood by lawyers produce o Lawyers want formalistic, liberal approaches to laws o But Llewellyn is saying do not get fixated on lawyer's certainty and instead look at effect on people and if people based on their background would expect result o Should not allow law to confound people's expectations due to lawyers' approach to it Llewellyn quotes on embracing a new understanding of legal certainty: P. 72: "Layman's certainty-through-law, by seeking for fair or wise outcome as far as precedent and statute make such outcome possible." "To the extent that, when the court is called upon, its judgment will jump with the layman's prior non-legal expectation, that layman can plan safely, counting on the law, although without knowing it. In a regime of change, certainty in law is attained whenever change in the judges' ways moves in step and pace with changes in the ways—and so in the expectations—of the relevant laymen." o Karl Llewellyn, (1931) 31 Columbia Law Review 82 at 87 Reducing legal indeterminacy: but it is not desirable to eliminate all legal indeterminacy: Legal indeterminacy is functional and has positive uses P. 61: Realists seeking to discover hidden factors that produce judgements with a view to predicting what courts will do Directed to finding where and when and how far certainty has a value The legal realists emphasise that uncertainty does have a value. Indeterminacy gives you flexibility o Judges can achieve just results o Law can change to meet expectations of relevant groups of non-lawyers o Allows judges to reshape the law to respond to changes in technology, economy o Reshape the law as social values and norms change In all of these cases, indeterminacy in the law is utilised without explicitly denying the formalist picture of law o Head on clash is avoided o This is crucial in liberal societies because legal formalism is the manifestation in law of key liberal principle: the rule of law o The amazing trick of the law is to achieve flexibility and change through indeterminacy while at the same time telling a story that denies any flexibility and change Stanley Fish on the need for some indeterminacy: "The law is continually creating and recreating itself out of the very materials and forces is obliged, by the very desire to be law, to

push away. The result is a spectacle that could be described...as farce, but I would describe it differently, as a signal example of the way in which human beings are able to construct a roadway on which they are travelling, even to the extent of 'demonstrating' in the course of building it that it was there all the while." o Stanley Fish, There's no such thing as free speech, p. 156. o Fish describes this as law's amazing trick o From a formalist point of view, the legal realist is trying to destroy what is good law - seeking lack of coherence and rationality o But in hands of people like Llewellyn and Fish, there is an appreciation of a different task in the law o Law is performing this amazing trick and rebuilding itself while denying it is doing so - law has been doing this for a long time Recognising that law is doing something else that is quite magnificent What is the source of legal indeterminacy for Llewellyn?: The nature of legal rules...