Final Cause: Structure of Law as Determined by Judges

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 63

As used in this book, the term "structure of law" refers to the authoritative determinations made by courts on the meaning of constitutional provisions, statutes, and the common law. The shape of these determinations takes different forms, just as an Aristotelian bowl, discussed at ß 1.2.1, can take different forms, as long as it is not so flat that it becomes a plate or so round that it becomes a vase.

The background to any act of judicial decisionmaking depends on whether the judge is operating within the framework of a common-law system or a civil-law system. The differing nature of these two systems, and the impact that has upon judicial decisionmaking, particularly the fact that legal reasoning tends to be more inductive in common-law countries, especially for common-law or some constitutional issues, while legal reasoning tends to be more deductive in civil-law countries, in terms of interpreting civil-law codes, is discussed at ß 4.1. The form or shape of legal doctrine is discussed at ß 4.2. This involves noting that, at a minimum, four different decisions must be made to determine the form or shape of any legal doctrine. The first decision is whether the doctrine should be phrased in absolute, categorical terms or as a balancing test. Once that decision is made, the next decision is whether that categorical or balancing test should be phrased in terms of elements to meet or factors to weigh. The third decision is whether those elements or factors should be phrased in the language of specific rules or broader standards. The final decision is whether those rules or standards should be viewed as questions of law to be applied by the judge or questions of fact to be determined by the trier of fact, in a common-law system typically a jury. Judicial use of precedent is discussed at ß 4.3. Sometimes judges make broad use of precedent in their judicial opinions; other times judges make narrow use of precedent. Usually judges follow precedent, but sometimes precedent is overruled. Finally, the structure of law that emerges from the use of the materials of judicial decisionmaking is dependent upon various predispositions that judges may have in deciding cases. Aspects of these predispositions are discussed at ß 4.4.

All of these possible variations on the structure of law reflect choices that must be made within the usually defined limits of what constitutes an acceptable approach to legal doctrine and judicial decisionmaking. It should come as no surprise that the different styles of judicial decisionmaking tend to favor different styles of legal reasoning, different forms or shapes of legal doctrine, and different approaches to precedent. Judicial predispositions regarding legal reasoning are discussed at ß 4.1. Judicial predispositions regarding the form or shape of law are discussed at ß 4.2. That discussion will suggest the following about the general judicial predispositions of the decisionmaking styles:

Table 4.1 Judicial Predispositions in Legal Reasoning and the Form of Legal Doctrine


ß 4 1 Common-Law versus Civil-Law Countries: Induction versus Deduction

As many authors have noted, judicial reasoning in constitutional, statutory, or common-law cases can adopt either an inductive or a deductive mode of reasoning. Typically in statutory interpretation cases, or interpretation of a code in a civil-law country, the judicial reasoning is more likely to follow a deductive mode of analysis. In contrast, common-law adjudication is more likely to reflect an inductive mode of analysis, particularly in resolving leeways in the law. Constitutional adjudication is somewhat more complicated. Judicial reasoning in constitutional cases has tended to be more deductive in areas where the constitutional provision is phrased in relatively detailed, specific terms, and thus where adjudication is more like statutory interpretation. For constitutional text phrased more generally, like the First Amendment provision that "Congress shall make no law . . . abridging the freedom of speech," or the 14th Amendment provision that "no State shall . . . deny to any person equal protection of the laws," judicial elaboration has tended to be more inductive.

The difference between deductive and inductive modes of analysis was discussed by Columbia Law School Professor Harry Jones. In his article, Our Uncommon Common Law, he stated:

The story of law in the Western World is a tale of two cities, Rome, where the continental European legal tradition had its rise, and London, to which our own legal system traces its pedigree. The nations of Europe and the Americas, and such Asian and African nations as have followed European legal patterns, are divided into two great law families: the civil-law countries and the common-law countries. A civil-law country is one whose legal system reflects, however remotely, the structural concepts, principles, and decisional methods of classical Roman law, the law of the Roman Empire as compiled and promulgated at Constantinople in the sixth century as the Corpus Juris Civilis of the Emperor Justinian. . . .

[T]he story of the common law has to begin in London [with] the royal courts at Westminster.1

Professor Jones noted about the civil-law system:

A lawyer, judge, or legal scholar schooled in the civil-law tradition approaches legal problems and legal sources with certain philosophical presuppositions quite different from those of the common-law lawyer. . . . [I]n the civil-law universe of discourse, nothing is law, in the full sense, that has not been written down in exclusive textual form and enacted by the state's sovereign power. In civil-law countries, the codes in which private law is cast are formulated in broad general terms and are thought of as completely comprehensive, that is, as the all- inclusive source of authority to which every disputed case must be referred for decision. The civil-law lawyer or judge, faced with a particular problem or controversy, must locate his answer somewhere within the four corners of the authoritative code. Learned commentary on the code may help him discover the code's true meaning for the case at hand, but his decision must ultimately be justified, at least in form, by deduction from some principle in the code itself - and most certainly not by reliance on the authority of past judicial decisions.2 Page 65

Professor Jones contrasted this with the mode of reasoning of the common-law system:

The common-law lawyer works in quite another metier and brings different jurisprudential presuppositions to his tasks. Although a great deal of contemporary American and English law is legislative in origin, the law inferred from judicial precedents is fully as important with us as the law set down by statutory enactments. . . . [O]ur codes are not the all-inclusive, systematic statements found in civil-law countries. In any event, our modes of thought are less deductive, far less confident that the final answer to every contemporary problem can be found within the confines of any enactment, however comprehensive. An eminent Italian jurist, impatient with my incorrigibly common-law habits of reasoning, once put the difference to me in these terms:

Given the same problem to a civil lawyer and a common lawyer. What do we do? We find the governing principle in the text of the code. What do you do? You look for a case. We reason from principle. You stumble along by analogy. I wonder how you ever get anything decided at all.

My friend's charge is overstated, but he is quite right in a way. We common-law lawyers . . . do exhibit a Pavlovian stimulus and response effect: give us a problem, we try to think of a case, a judicial precedent, and if we cannot think of one, we go off to the library and start looking for it. We are uneasy with doctrinal generalizations, more comfortable with the facts of cases than with general concepts, and we never feel quite secure about our professional predictions until we have located a "case in point," that is, a past court adjudication in a controversy that was factually alike, or something like, the problem now presented to us.3

Professor Jones cautioned in his article that we should be wary about exaggerating these differences. Professor Steve Nickles similarly noted in an article about the civil law, "'[A civilian lawyer] looks at the articles of a Code not as mere rulings, but as particular expressions of more general ideas. Therefore, if no express answer to a certain problem is found in the Code, it is not improper to consider various articles in order to induce from them a more general rule and to apply this rule if it can give a solution. It has sometimes been said that articles of a code are not only law, but sources of law. This is true, not only in the sense that the courts may, by deduction, decide on the implications of a certain article, but also in the sense that the courts may, if necessary, use induction to discover the general rules implied in the provisions of a code, and then, reverting to deduction, develop...

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