Is Law "Just Politics"?
For the first century of U.S. history, the dominant mode of legal thought was Legal Formalism. Personified by nineteenth century Harvard Law School dean Christopher Columbus Langdell, Legal Formalism maintains that legal reasoning is categorically distinct from other kinds of reasoning (like moral reasoning or political reasoning). The major premise of the syllogism comes from positive law (for example, a statute, the Constitution, or the common law), and when this major premise is applied to the facts of the case at hand, it compels a single logical result.
In the late 1800s and early 1900s, a new school of legal thought arrived on the scene to challenge Formalism. Legal Realism, whose most famous proponent (at least in the early years) was Justice Oliver Wendell Holmes, Jr., holds that legal reasoning isn't any different from any other kind of reasoning. The decision of which major premise should be applied to the facts of the case, on this view, is not at all uncontroversial or foreordained; thus, judges make substantial policy determinations when they decide cases. The best predictor of what the law is, the old Realist adage goes, is what the judge ate for breakfast. On this view, law is "just politics."
These two views have battled for preeminence in the legal world over the last century. After Holmes, Legal Formalism was revitalized in the form of the Legal Process school of thought, championed by Harvard Law School professors Henry Hart, Albert Sacks, and Herbert Wechsler, among others. Then in the 1970s, Realism returned with a vengeance under the name of Critical Legal Studies, which highlighted the ways in which law subjugated certain groups in society under the guise of neutrality. Today, in echoes of economic theory, the consensus is that "we're all Realists now." But Formalism is coming back into vogue in some circles.
(Disclaimer: I place myself squarely within the Realist camp.) So who gets the better of this debate? Is law really "just politics"?
The Formalists are right, I think, to point out that the nature of the judicial role limits what judges can do. Judges can decide only the case before them (appellate courts can affirm, vacate and/or remand, or reverse), and they have little enforcement power, so they can't stray very far from public opinion for very long.
But the fact that some options are off the table when it comes to judicial decisionmaking does not mean that law is categorically different from politics. I think the debate ultimately boils down to how you define "politics." If politics means reaching any specific result one wants at a high level of particularity (e.g., picking the individuals who should win in every future case), then law is probably different from politics. But if politics includes preferences at a higher level of generality (e.g., picking who should decide the individuals who should win in future cases), then I think law is no different from politics.
What do you think?
In the late 1800s and early 1900s, a new school of legal thought arrived on the scene to challenge Formalism. Legal Realism, whose most famous proponent (at least in the early years) was Justice Oliver Wendell Holmes, Jr., holds that legal reasoning isn't any different from any other kind of reasoning. The decision of which major premise should be applied to the facts of the case, on this view, is not at all uncontroversial or foreordained; thus, judges make substantial policy determinations when they decide cases. The best predictor of what the law is, the old Realist adage goes, is what the judge ate for breakfast. On this view, law is "just politics."
These two views have battled for preeminence in the legal world over the last century. After Holmes, Legal Formalism was revitalized in the form of the Legal Process school of thought, championed by Harvard Law School professors Henry Hart, Albert Sacks, and Herbert Wechsler, among others. Then in the 1970s, Realism returned with a vengeance under the name of Critical Legal Studies, which highlighted the ways in which law subjugated certain groups in society under the guise of neutrality. Today, in echoes of economic theory, the consensus is that "we're all Realists now." But Formalism is coming back into vogue in some circles.
(Disclaimer: I place myself squarely within the Realist camp.) So who gets the better of this debate? Is law really "just politics"?
The Formalists are right, I think, to point out that the nature of the judicial role limits what judges can do. Judges can decide only the case before them (appellate courts can affirm, vacate and/or remand, or reverse), and they have little enforcement power, so they can't stray very far from public opinion for very long.
But the fact that some options are off the table when it comes to judicial decisionmaking does not mean that law is categorically different from politics. I think the debate ultimately boils down to how you define "politics." If politics means reaching any specific result one wants at a high level of particularity (e.g., picking the individuals who should win in every future case), then law is probably different from politics. But if politics includes preferences at a higher level of generality (e.g., picking who should decide the individuals who should win in future cases), then I think law is no different from politics.
What do you think?
posted by Garrett at 1:47 AM
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