The Form or shape of Judicial Decisionmaking

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

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ß 2 1 Introduction to the Form or Shape of Judicial Decisionmaking

To understand how any individual goes about the task of deciding a case, it is necessary first to understand that individual's jurisprudential approach toward law. All individuals, whether they are aware of it or not, have such an approach. Justice Benjamin Cardozo reminded us of this fact in his famous book, The Nature of the Judicial Process, originally published in 1921. As he stated:

We are reminded by William James in a telling page of his lectures on Pragmatism that every one of us has in truth an underlying philosophy of life, even those of us to whom the names and notions of philosophy are unknown or anathema. There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them - inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense in James' phrase of "the total push and pressure of the cosmos," which, when reasons are nicely balanced, must determine where the choice shall fall. In this mental background every problem finds its setting. We may try to see things objectively as we please. None the less, we can never see them with any eyes except our own. To that test they are all brought - a form of pleading or an act of parliament, the wrongs of paupers or the rights of princes, a village ordinance or a nation's charter.1

Justice Cardozo also remarked, "It may not have been the same principle for all judges at any time, nor the same principle for any judge at all times. But a choice there has been, not a submission to the decree of Fate; and the considerations and motives determining the choice, even if often obscure, do not utterly resist analysis."2

Jurisprudentially, there are two main questions that lie behind any act of judicial interpretation. The first concerns the nature of law: analytic versus functional. The second concerns the nature of the judicial task: positivist versus normative. The remainder of Chapter 2 will examine these two responses to these two questions. Chapter 3 will then combine the two responses to these two questions and show how they create the four judicial decisionmaking styles: formalism (analytic positivism); Holmesian (functional positivism); instrumentalism (functional normative); and natural law (analytic normative). Chapter 4 will then provide a general perspective on the structure of law that emerges from judicial use of these decisionmaking styles in the areas of common-law, statutory, and constitutional adjudication, including the extent to which legal reasoning is predominantly inductive or deductive, and the different approaches to precedent. Taken together, the discussion in Part I of this book will provide the necessary background context for the discussion of the specific issues relating to constitutional interpretation addressed in Parts II, III, and IV of this book. Page 20

ß 2 2 The Nature of Law
ß 2 2.1 Analytic versus Functional Approaches to the Nature of Law

Concerning the nature of law, two main approaches have appeared in jurisprudential writings. These two approaches differ over whether law should be judged primarily in terms of its success in developing a set of logically consistent, universal rules. Under one approach, law is seen as a primarily a set of rules and principles whose application is guided by an analytic methodology of logic and reason. This has been called the analytic, or conceptualist, approach.3 Alternatively, law can be seen as ultimately to be judged not in terms of logical consistency, but as a means to some social end through a pragmatic or functional treatment of rules and principles. This has been called the functional, or pragmatic, approach.4

A relatively sophisticated discussion of this difference between an analytic and a functional approach toward the nature of law appeared in a 1988 Yale Law Journal article by Professor Ernest J. Weinrib. As Professor Weinrib noted, "[L]egal ordering [under an analytic approach] is not the collective pursuit of a desirable purpose. Instead, it is the specification of the norms and principles immanent to juridically intelligible relationships. [This approach] repudiates analysis that conceives of legal justification in terms of some goal that is independent of the conceptual structure of the legal arrangement in question."5 In contrast, Professor Weinrib noted, "The dominant tendency today [under a functional approach] is to look upon the content of law from the standpoint of some external ideal that the law is to enforce or make authoritative. Implicit in contemporary scholarship is the idea that the law embodies or should embody some goal (e.g., wealth maximization, market deterrence, liberty, utility, solidarity) that can be specified apart from law and can serve as the standard by which law is to be assessed. Thus law is regarded as an instrument for forwarding some independently desirable purpose given to it from the outside."6 As described by Professor Felix Cohen in his classic 1935 article, Transcendental Nonsense and the Functional Approach, "If the functionalists are correct, the meaning of a definition is found in its consequences."7 Page 21

A similar, but perhaps more accessible, discussion of the difference between an analytic and functional approach appeared in a 1981 Cornell Law Review article by Professor Robert Summers. Comparing a functional versus an analytic approach toward law, Professor Summers noted:

[The functional approach] views law not as a set of general axioms or conceptions from which legal personnel may formally derive particular decisions, but as a body of practical tools for serving substantive goals. Second, it conceives law not as an autonomous and self-sufficient system, but as merely a means to achieve external goals that are derived from sources outside the law, including the dictates of democratic processes and the "policy sciences." Third, it assumes that a particular use of law cannot be a self-justifying "end in itself." Uses of law can be justified only by reference to whatever values they fulfill. Finally, the law is considered to serve generally instrumental values rather than intrinsic ones. That is, law's function is to satisfy democratically expressed wants and interests, whatever they may be (within constitutional limits).8

Not surprisingly, these four differences between a functional and an analytic approach mentioned by Professor Summers track Aristotle's four causes, discussed at ß 1.2.1: material, formal, efficient, and final. With respect to material causes, in Summers' terms, law is either viewed as a set of general axioms or law is viewed as a pragmatic tool. With respect to formal causes, law is either defined as being autonomous from social policy decisions or law is a means to an end. With respect to efficient causes, law is either an end it itself or is used to fulfill values. With respect to final causes or purposes, the law's function is either to serve intrinsic values or instrumental ones. Each of these four causes is considered next, at ß 2.2.2.

ß 2 2.2 Discussion of Analytic versus Functional Approaches in Terms of the Four Causes
ß 2 2.2.1 Material Causes and the Nature of Law

With respect to material causes, the functional approach views law not as a set of general axioms or conceptions from which legal personnel may formally derive particular decisions, but as a body of practical tools for serving substantive goals. From an analytic perspective, law is like a static and closed logical system; the major focus is law in books. From a functional perspective, law is based on a more dynamic and open framework; the major focus is law in action.

A classic statement of this difference between the analytic and functional approaches appeared at the beginning of Justice Holmes' great book, The Common Law. Supporting a functional approach toward law, different than the predominant analytic approach of his time, Holmes stated in 1881:

It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the Page 22 times, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.9

University of Wisconsin Law School Professor and Historian J. Williard Hurst summed up Holmes' functional attitude, as contrasted with the analytic attitude, as follows:

What is "the law," the life of which we would...

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