The Efficient Causes of Constitutional Law

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

Page 277

Efficient causes involve consideration of that aspect of a phenomenon which causes things to change, like the "hammering of the silversmith" in Aristotle's silver bowl example, noted at 1.2.1. Decisions on constitutional law are hammered out by application of the four judicial decisionmaking styles to the facts of particular cases in light of the available materials for interpretation. These four interpretation styles are thus the efficient causes of constitutional decisionmaking. The first sub-part of Part III will describe these efficient causes in detail. Chapter 9 will discuss formalism; Chapter 10 will discuss the Holmesian style of interpretation; Chapter 11 will discuss instrumentalism; Chapter 12 will discuss natural law.

For each of the four interpretation styles, there are a number of variations. For example, for any style of interpretation there can be judges who reflect an extreme version of that style or a moderate version. There will also be a difference depending upon whether the judge adopts a conservative or liberal version of that style. Thus, after an initial discussion of the basic elements of an interpretation style, each Chapter will consider aspects of these variations.

Each one of these four styles in their interpretive methodology place greater emphasis on one or the other of Aristotle's four causes. The four styles and their related causes are: formalism (formal causes); Holmesian (material causes); instrumentalism (efficient causes); and natural law (final causes). Under the formalist style of interpretation, the formal definitions embodied in the law are the most critical element of interpretation to resolve hard cases that inevitably arise. For the Holmesian style, the material history or experience that lies behind a rule, and that frames the rule's purpose, is the most critical element of interpretation to resolve hard cases. Instrumentalist sensitivity to social reality and change leads them to focus on the efficient causes of...

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