Week 6 slides.pdf

Alexey Venetsianov “Full Scale Class” (1824) ADMIN / TUTORIALS TUTORIAL 1 UNDERWAY STUDENTS MUST ATTEND THE SLOT THEY REGISTERED FOR IF CLASH / EMERGENCY OCCURS, ATTEND ALTERNATIVE SLOT AND SIGN CLASSLIST SEMESTER TEST DETAILS DATE: 16 APRIL 2024 VENUE: SEE VENUE ON UP PORTAL TIME: 17:30 – 19:00 DUR...

Alexey Venetsianov “Full Scale Class” (1824) ADMIN / TUTORIALS TUTORIAL 1 UNDERWAY STUDENTS MUST ATTEND THE SLOT THEY REGISTERED FOR IF CLASH / EMERGENCY OCCURS, ATTEND ALTERNATIVE SLOT AND SIGN CLASSLIST SEMESTER TEST DETAILS DATE: 16 APRIL 2024 VENUE: SEE VENUE ON UP PORTAL TIME: 17:30 – 19:00 DURATION: 90 MINUTES WEIGHTING 50% OF SEMESTER MARK SCOPE: Brooks, Ngwane and Runciman; Brown; Nunn; Le Roux; Van Blerk; and Meyerson (and all related class notes) TEST FORMAT ALL QUESTIONS ARE COMPULSORY Q1 LONG QUESTION (10 marks) Comprehensive and concise answer; answer question straight away; integrate theories; 3 pages max (no bullets); be mindful of language and grammar (full sentences). Q2 AGREE / DISAGREE (4 x 3 = 12 marks ) State whether you agree/disagree; correct or elaborate on the underlined term. Q3 COMPARE AND CONTRAST CONCEPTS (2 x 4 = 8 marks) Define each term/concept/theorist in relation to the theory/context it comes from and then discuss the main similarity/ies or difference/s between them. TOTAL 30 MARKS THEORISING LAW AMERICAN LEGAL REALISM Note: In this course we will be discussing American Legal Realism but it is useful to note the existence of the Scandanavian tradition of legal realist thought (See Hoctor (2004) 173) Key tenets of legal realism “The key precept of American Legal Realism is that notwithstanding the invocation of supposedly immutable, pre-determined and transcendent or “neutral” principles of law, the law is instead indeterminate and crowded with opportunities for the exercise of discretionary judgement. Judges are not law-spouting computers but universitytrained lawyers who bring to the bench all manner of life experiences, philosophies, habits of thought, cultural values, personality traits, and intellectual prowess.” (W. William Hodes “Bias, the appearance of bias, and judicial disqualification in the United States” in HP Lee (ed) Judiciaries in Comparative Perspective (2011) 384 ) Introduction American legal realism - movement whose peak was in the 1920s, 1930s & 1940s (the most significant realist writing actually spans 1900 - 1960) Key figures include: Oliver Wendell Holmes, Felix Cohen, Jerome Frank, and Karl Llewelyn Broadly, legal realists took aim at ‘mechanical jurisprudence’ or formalism which viewed (1) law as consisting only in pre-set and determinate rules and (2) these rules are the main source of judicial decision-making Many “non-legal” factors (morality, politics and social policy issues but also the idiosyncrasies and beliefs of the judge) significantly affected legal outcomes. “The law is what the courts say it is” Realists recognised courts as sites where you can find the law and that judges have some degree of lawmaking power. Realists sought to challenge the traditional / formalist view of law and wanted establish how law really operates and the real reasons behind judicial decisions. Hence “realism”: the description of law as it really is Thus realists offer a social-scientific/empirical account of how and why judges reach certain decisions. “The insights of legal realism are mainly negative, revealing a deep scepticism about the model of rules, and indeed, about any general and abstract theory of the law” (Hoctor (2004) 160) Critique of Langdellian formalism (and formalism in general) Realist scholarship arose in a context where prevailing view was that there were uniquely correct solutions to legal problems that judges could arrive at via deductive application of rules Christopher Columbus Landgdell (then Dean of Harvard Law School) key figure in development of formalist orthodoxy. Langdell developed an approach to law based on science that he named the case method of legal instruction –. – “To Langdell, ‘science’ conjured up the ideas of order, system, simplicity, taxonomy and original sources. The science of law involved the search for a system of general, logically consistent principles, built up from the study of particular instances [or cases]” (W Twinning Karl Llewelyn and the Realist Movement (1973) 12). Thus, from a historical perspective, Realism can be seen as response to and rejection of Langdellian formalism (and formalism in general) - “mechanical jurisprudence” The law is not to be found in abstract concepts and doctrines but in what courts [or judges] do in fact Distinction between “law in practice” vs “law as written down” Since rules [law as written down in books] cannot explain the nature of law, realists suggest we must look into how judges decide cases [law in practice]. “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (Holmes) Bad man metaphor. Law is to be understood not in terms of ideals or theoretical abstractions but from the view of the bad man. "Bad man” does not care for axioms/moral values or deductions but does want to know what conduct is likely to put him in jail or generate liabilities for him.” The law is not to be found in abstract concepts and doctrines but in what courts [or judges] do in fact Realists argue that the main determinant of a legal outcome is not rules but instead a set of non-legal factors that frame the judge’s perspective. Legal rules function to rationalise the decision already reached on the basis of these non-legal considerations. The non-legal factors can broadly be divided into 2 categories: (1) psychological) and (2) sociological PSYCHOLOGICAL SOCIOLOGICAL Jerome Frank – interest in psychoanalysis Karl Llewelyn Personality and attitude of the judge The psychological explanation of the nonlegal factors that influences fails to explain common threads or uniformity in judges (why judges, in general, react similarly to legal problems) Idiosyncrasies and personal biases – which can stretch so far as to include the physical appearance of a persons, their political orientation, and even their behaviours surrounding social forces and social context in which law is operating, looks at broad social background of judges looks at institutional setting, looks at dominant ideology on the judicial function by which judges conceive of their role Unconscious and undiscoverable influences Context: time and place and legal culture which shapes, limits and guides judges and their habits of mind Rule-scepticism Judges thus cannot be said to make decisions based solely on following rules and precedent (hence the focus on non-legal factors). Judges also face interpretive choices in relation to precedent and rules (in part due to ambiguity in the language of legal rules, competing precedents supporting different outcomes, multiplicity of techniques of establishing the ratio decidendi, the potential for ‘facts’ to either make a case distinguishable or comparable to the present case ) Essentially, posit that rules do not decide cases, judges do! LAW IN BOOKS VS LAW IN ACTION: focus on the actual practices of court decision-making (“Law is simply what the courts decide or predictions as to what they will decide”) Fact scepticism Jerome Frank, a fact–sceptic and rule-sceptic realist, argues that the rule sceptics focused narrowly on the law in action without paying attention to the facts upon which legal decisions were based. Fact scepticism suggests that “facts” are not independent entities that legal processes ‘discover’; but rather constructed propositions about a supposed reality that is generated by that legal process. Basic fact-scepticism arguments: The ‘facts’ as found by the judge/jury may not correspond to the actual facts Witness observations and memory may be hazy yet they will be pressed to present confident, clear and unambiguous version of facts to the court At the psychological level, fact-finding processes in law rarely produces the Truth (aggressive cross-examination, oratory style of lawyers, unreliable witnesses, judge’s response, lawyer bias (???)) Indeterminacy of law The realist claim that the law is indeterminate (i.e. legal rules are not capable of producing uniquely correct legal outcomes) On this view, legal texts cannot “command” the right legal answer. Holmes: “general propositions [legal rules] “do not decide concrete cases [factual problems before the court]” The indeterminacy argument (or “indeterminacy thesis”) takes a number of forms: 1. There are different rules that are potentially relevant to a dispute 2. Conflicting (but equally plausible) interpretations of statute and precedent Law as policy (social and economic considerations) Judges should openly adopt a law-making role and address social and economic questions: – “[The] Realists argued that judges were faced with crucial policy questions. Formalism was being used as a cloak for hiding innovations and policy decisions, even conservatively, to deny the need for change. Recognising that law had become a policy battleground, Realist espoused judges openly taking a stand” (Veitch et al (2007) 101). Context: Legal realist support of President Roosevelt’s New Deal ; sought to challenge the conservative US Supreme Court judges who were knocking down the New Deal policies This turn to policy should not be confused with a belief in values such as justice, obligation, legal right etc – realists were equally sceptical of values as determinants of law-making Concluding thoughts “[The] Realist movement has been, and still has the potential to be, enormously influential. In particular, by emphasising the indeterminacy of law and legal reasoning, and the importance of non-legal considerations in judicial decisions, the realists cleared the way for judges and lawyers to talk openly about the political and economic considerations that in fact affect many decisions. The approach of the realists movement prevented the courts from raising the stock excuse for not reaching a just decision, that the rules permitted no other choice. No longer could the judge hide behind precedent, she had to acknowledge her responsibility.” (Hoctor (2007) 181)