Law in Contemporary Society
Professor Moglen,

I changed my paper substantially this time around, hopefully taking into full account your comments on the first draft. I decided to eliminate the second topic entirely and try to more fully flesh out my ideas about law and morality, particularly focusing on judicial decisions. It needs more work, but I hope this is an improvement. I changed a lot of it, so I decided just to include the revised version on top of the older version, rather than actually writing on the original.


  • You wouldn't have been "writing on" the original. Wikis save every version of everything in them, as I explained at the beginning: that's how they can be used as we use them, because every change can be tracked. You can always find all the prior versions behind the "Diffs" button. So I've taken the first draft away, for clarity.

Law, Morality, and Magic

By KristineVanHamersveld - 16 Apr 2009

As first year students, one of the first important dichotomies we learn in legal scholarship is that of the battle between Langdell and the Formalists and Llewellyn and the Realists. Presumably we do so because we are trying to answer one of the most important questions we, as law students should ask: how do judges make decisions? This question is relevant not only intellectually to law students assigned to read holding after holding, but also for us future lawyers that will need to convince judges and future judges who will need to be convinced. In order to answer this question, its necessary first to decide what “law” is, and only then can we begin to approach a discussion of how it may be invoked by judges in their opinions. Formalism tells us that law is what’s on the books. It’s the black letter of a statute or the Constitution staring up at its reader, explaining for better or worse how each and every conflict must be resolved according to the carefully debated “law.” Legal realism tells us that law is the person reading the book. It’s the judge, and all of her education, moral values, and life experiences reading the letters in the book and making a decision based on how she reads them and how she views the case set out in front of her. Neither theory is completely true or false. The grey area where the two approaches unavoidably overlap is where the answer to my question can be found.

Judges are moral beings, like everyone else, but in their role as judge or justice, they must assume a level of moral neutrality or else risk being labeled as “activist.”

  • Umm, and then? I don't think I've ever met a judge who particularly cared whether someone called her or him an activist. Judges are actually pretty well acquainted with what judging is about, and they know better than to care either about what names people call them or some blather about activism that they recognize is cant. I can think of reasons why judges care about their own ability to keep an open mind (which I'm pretty sure is not the same thing as moral neutrality, but is I think closer to what you meant, unless what you mean by moral neutrality is different from what I would mean). But I don't think this is one. And because keeping an open mind and formalism have no direct or inverse correlation, are not in fact either related or incompatible, though your premise is right on other grounds it won't carry you towards a conclusion on the main point anyway.

Their challenge is to make the “right” decision based on myriad considerations, including but certainly not limited to: doctrine, statutes, history, the Constitution, and some sense of “American” values. When more closely examined however, these elements of the law can all be reduced to the same common denominator: morality.

  • Excuse me? On what definition of morality are all those other things only it again?

Statutes are rules that derive from the moral deliberation of legislatures. The Constitution is a written summation of the moral values of the politicians that designed our country. Doctrine which is based on a mix of all of the above, contains the moral element of each of its parts as well as the morality of the hand that writes it. History, like doctrine, is broad, but as applied to the law, history is little more than a moral framework, grounded in the legitimacy of nostalgia or our moral past. American values, are literally morals; shared political and ethical ideas that one has to buy into in order to buy into the system as a whole.

  • Every one of the propositions above is debatable, some of them intensely, unless your definition of morality is very broad indeed: far broader than the dictionary is likely to contain.

At the end of the day, or rather, at the end of the opinion, the judge is left with very little besides moral values to base an opinion on. Law is not the same as morality, but it is so intrinsically connected to the latter that it makes any illusions of objectivity in the law comical. But, society’s version of morality (encompassed in the sources mentioned above) is not enough to produce a judicial decision. Law is as much the written words, as the judge who is reading them, and each judge brings his or her own history to the bench when they interpret the law.

  • Aside from the grammatical mistake in the final four words, it's difficult to disagree with this sentence, which requires no illustration and sheds no light whatever on the original question "how do judges make decisions?"

The debate over separation of powers in Constitutional law provides an illustration. For example, in the Steel Seizure case, the majority held that the executive power of the president did not include a power to seize the steel industry to prevent it from striking during a war. The opinions on both sides were written so that they appeared to depend on analysis of legislative history, the text of the constitution, and previous doctrine. Certainly, these elements guided the decisions, but it wasn’t the history, or the constitution, or the doctrine that wrote the holding, it was the judge. The most important question in this case then wasn’t “what does the constitution say about executive power” it was: “how do you (the judge) feel about restricting executive power, and where can you find support for that in your reading of the sparse words of the constitution?” Whether you think “executive” means “plenary power” or you think “executive” means “executive limited to the enumerated powers” cannot possibly be answered by “law,” the law doesn’t have an answer. The solution depends on the judge’s political philosophy and moral values regarding the role of the President and the legislature.

  • The preceding sentence does not follow from its predecessors. The "solution," by which you mean the decision, could depend instead on a judge's partisan affiliation, an agreement whether formal or informal to trade support for an opinion in this case for support in another case, a bribe or material interest, a mistaken belief in historical analogy, an astrological prediction, or an intense dislike or overwhelming sense of trust in one party's counsel or another member of the Court, for example. Formalists think they know why cases are decided on the basis of philosophy or values as well as on the basis of rules. Realists think they know only what judges do. Having seen what Supreme Court Justices do, I have no reason whatever to believe your account of how the Steel Seizure cases were decided. I do believe your account is part of a larger account which would "explain" pretty satisfactorily how the decision came to be made. And that would answer the question you originally asked. But the political philosophies and moral values of the Justices would, I think, have a rather small place in the story. The formal law would have more, for one thing, and would still be less important than "politics." Don't forget, for example, about Vinson's snottiness to Jackson and Clark, and even more importantly about Hugo Black's bourbon.

Once, this fundamental question is addressed, the justices can dress it up in transcendental nonsense, give it the “look” of objective validity, and move on to the next case to repeat the process.

  • Not really. How could a case in which nine judges rendered seven differing opinions be described as you have described it above?

Cohen’s “legal magic,” which at first glance appears to exist in the opposite of a moral system of law, enters the equation precisely because law is so morally derived. Cohen criticizes using extreme formalism to make legal decisions, rather than ethical considerations, because he’s right that it amounts to nothing more than argumentative nonsense. However, the nonsense is really, the second (or third, or fourth) step in judicial reasoning. The “legal magic” is the icing on a moral cake. The cake itself is made up of one part society’s moral values (which encompass all of our traditional sources of law) and one part personal moral values of the judge (or as Llewellyn says, perhaps of what he had for breakfast). But, no one will eat a cake without icing. The legal magic, the esoteric argument for the sake of argument has to exist as a cloak of legitimacy on the entire system, lest the public discover, their objective iron clad system of law is nothing more than a manifestation of subjective moral values.

  • The metaphor doesn't help at all here. Take the cake out, and try to say exactly what you mean.

Indeed, the only reason that “legal magic” is harmful at all is that it’s distracting. It draws our attention away from the real source of judicial decision making and has us running like hamsters on a wheel, in a circular pattern, trying to discover a truth that is inaccessible to us because we always end up exactly back where we started.

  • The only reason it is harmful at all is that it doesn't work? What sort of a conclusion is that?


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r6 - 08 Jan 2010 - 22:10:32 - IanSullivan
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