April 14, 2009
Green on Legal Realism and Naturalized Jurisprudence
Via Solum, I learn that my (part-time) colleague Les Green's (long-gestating) paper on "Law and the Causes of Judicial Decision" is finally on SSRN (it will appear in final form in Green's forthcoming collection of papers from OUP). I have a number of quibbles about Leiter interpretation (the most important is that I've noted since at least my 1996 essay on Realism for The Blackwell Companion to the Philosophy of Law and Legal Theory that Felix Cohen was guilty of the kind of conceptual rule-skepticism Hart attacks--though oddly Hart never cites Cohen), but the core challenge is an interesting and novel one.
On my account, most Realists are committed to the claim that the law (more precisely, legal reasoning) proves to be indeterminate in most of the cases that reach the stage of appellate review. This indeterminacy arises, on the Realist argument, from the fact that there exist equally proper but conflicting ways of interpreting authoritative sources of law (like statutes and prior court decisions) such that the same source can yield conflicting rules (think of Llewellyn on the canons of statutory construction and the strict and loose view of precedent). (Jerome Frank is an exception to this generalization, since he thought the crux of indeterminacy in legal reasoning resided in the latitude judges have in characterizing the facts of the case in terms of their legal significance, and so he thought intedeterminacy was pervasive. I bracket his idioynscratic views here.) In Green's terminology, the Realists deny that at the appellate level, cases are governed by "mandatory norms," i.e., rules that impose obligations on the judges to decide the case just one way and not any other.
But Green's challenge is: on what grounds can we cabin the argument for indeterminacy just noted to only those cases that reach the stage of appellate review? In fact, their arguments for rule-skepticism (for indeterminacy) ought to entail that there are no mandatory norms anywhere in the legal system. And any theorist who denies that there are any mandatory norms is denying something H.L.A. Hart (among many others!) affirms. So, contra my presentation, there is a significant incompatibility between the positivist theory of law and Legal Realism. Green's proposed solution to the dilemma is to suggest that we should understand the Realists to indeed recognize that there are legal norms, but to hold that they are all only "permissive" rather than mandatory: they provide easily defeasible reasons for decision, reasons that are often defeated at the appellate level, less often in more humdrum cases.
Now the notion of a "permissive" legal source is interesting in its own right, but the question I need to answer is why the Realist arguments for the indeterminacy of legal reasoning, which they deploy to good effect with respect to tons of examples drawn from appellate decisions, do not in fact entail denying the existence of any mandatory legal norms. Here is one possibility (I am here truly "thinking out loud," though this thought has some resonance with issues raised in the context of explaining theoretical disagreements): even if, in principle, the same conflicting methods of interpretatino could be applied in non-appellate cases, in fact, they are not, and officials (more or less) converge on the same results. So, in principle, all norms are merely "permissive" (in something like Green's sense), but in fact lots of legal norms act as if they are mandatory because of this fact about the actual interpretive practice of officials.