Does Good Judging Require a Uniform Method?

(sent to conlawprof)
 
... I think we would need to know what "same methodology" referred to. It seems that the only ethical requirement for good casuistry is to avoid internal contradictions and being fickle (changing your mind all the time). I could think of one having a very complicated decision constituence that deployed modalities of thought with purpose. For example, one might be a pragmatist if consequences became super extreme (civil war and the like) but be more orthodox if they are not. The same exact judge might be a "natural law" theorist for certain things (like non-amendment clauses in constitutions) but be a positivist for the other things constitutions say. These are not contradictions; they are choices made with purpose that construct the judicial belief system. So I think the only requirement here is that the judge has to justify within the body of belief why the modality is switching and what, therefore, the belief constituence consists of. 

At the end of the day, I bet all that one can get here is something in the nature of a character assessment. You say, in effect, "baloney" if you find the belief constituence is a  poor offering. I say this myself when I see Scalia being originalist for historical text but textualist for contemporary text. (In fact, one could argue it is more rational to switch these).  

At the end of the day, judging casuistry is no different than judging art. Really, that is all there is to philosophy of law at the (very) end of the day. The issue is whether the craft has "integrity" within the community who make up the cultural practice.

Regards.
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg

Judicial Common Space Scores, Science and Language

(sent to lawcourts)
 
Hi Chad.

First, thanks so much for sharing this.

Could you tell us a little about the semantic assumptions in the naming of the scores? For example, if someone were to call them the "legal philosophy space scores," would they be wrong? Or, what if they called them something like the "relative casuistry differential" -- would that be off the mark? When you tell others that you have "common space ideology measured," you surely don't mean "conventional ideology," right? And there is, of course, no way for a judge to decide a case that doesn't result in having an "ideology score?" And, if we were to develop measures of this sort of thing for scholars when they make decisions as a group that require judgment -- even the grading of exams -- they, too, would have "common space ideology?"  

I think I know a little about these scores. I admit I haven't paid great attention to them, but I have paid slight to moderate. And as I remember perusing them a while back, I've always found it curious what political science means when it calls them "ideology scores" and why empirical researchers would adopt non-scientific vocabulary for work such as this. Why not actually call the scores by a scientifically jargonized name, as real science does when it studies something in the external world? You do agree, after all, that the only thing quantitative models actually observe in the external world are the indices themselves, not the things they say they are seeing (e.g., "ideology")?  It seems to me that, somewhere down the road, you all may want to develop a science for the creation of indeces like this that could result in a jargonized lexicon that spoke the language of science.

Because as long as you are out there saying you've got "ideology" empirically observed, you really are in danger of sounding like creation science. There is no place in the external world where "ideology" is; the word itself is a normative conclusion about the status of beliefs. It would be something similar to saying, "I've got their epistemology measured." Imagine someone saying, "I have their correctness measured."  "So and So has a correctness score of X." You could, of course, find things in the external world to measure that bear upon a debate about these things, but you really can't say you have the things measured, because they, themselves, are fundamentally accusations about about the normative content of beliefs.  

I really want to help political science become either real science, or -- better yet -- good philosophy.

Regards and thanks. 

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg

Holmes, Policy Science and Sociological Jurisprudence

(sent to conlawprof)
 
David:

1. Holmes does not have to sign on to the program of sociological jurisprudence for him to believe that the ultimate foundation and legitimacy in law comes from the new "policy science." The issue here is twofold: (a) what judges are supposed to do; and (b) what are the grounds of law. Holmes' rejection of sociological jurisprudence as a program concerns (a), not (b). That should come as no surprise. Neither judges nor the judiciary as an institution could perform it (even if the science could -- which we all know it can't). Indeed, the actual program of sociological jurisprudence performed by judges would have offend Holmes' strong sense of pragmatism.

2.  But that does not mean that Holmes rejected "policy science" for (b). In fact, he did subscribe to the philosophic view that law's ultimate foundation could be had in "correct policy," (which, after all, is the intellectual event which created sociological jurisprudence in the first place).  As to Holmes general endorsement of the idea that (1) law is policy; and (2) policy can be an empirically correct science, see G. Edward White, Justice Oliver Wendell Holmes, Law and the Inner Self, (New York: Oxford University Press, 1993), 148-155, 168-171, 181, 192.

Holmes, Realism and Positivism

(sent to conlawprof)

1. One of the things I would do is ask yourself this question: what is "realism?" The word is very cheap these days. Law professors very often claim this word as a kind of badge of honor or something. The way law professors use the word "realism" reminds me the way that political scientists use the word "attitudes." It's not just me who notices this, by the way. In virtually any significant discussion about realism, you will find a person having to remind their contemporaries that the term isn't as sloganized as many people say. (One of the panel scholars at law and society was reminding "new realists" that they were not actually realist at all).

All that realism reduces to, philosophically, is the idea that judging is not a priori craft -- it isn't a self-contained orthodoxy. It doesn't take the form of a syllogism. Truths do not come deductively from premise to premise. Rather, it takes the form of "look at what results could be had and select among the best."  In theorizing about law and the state, however, it was common in Holmes' time to think of LEGISLATURES as being the ones performing this sort of cognitive labor. So if judges perform the sort of brain tasks that an idealized legislature would perform in a civil republic, it became logical to see legislatures as being more legitimate expositors of "law" for very obvious institutional reasons (elections, comprehensive policy planning, etc). And so, the idea of deference to clear positive law became an ethic that followed naturally from realism.

Holmes, therefore, has his hands in both cookie jars. It is true, however, that he created only one of the jars (realism), while only causing the other to ascend intellectually on its own. (That one was created by Austin, Hart, etc.)

Holmes and Realism (and positivism)

(sent to conlawprof)
 
Holmes was father to both realism and positivism. At least the positivism that emerged in American legal culture following the rise of the administrative state in the 1900s.  His essential contribution is the claim that judging is not a self-contained craft. It isn't an a priori orthodoxy. It isn't, in short, a mathematics. Remember that Holmes comes along ahead of his time during the moral sciences period of intellectual history. Inasmuch as judging is not the imposition of its own logic, what is it then? Is it subjective? No it is not. Holmes, like most of the realists who  followed him intellectually, was an objectivist in terms of his epistemology. "Law" was simply selecting the most empirically-appropriate policy configuration. One biographer of his calls this sort of ideology about law the new "policy science." (It was rather understandable, of course,  that "policy science" would emerge in legal culture at the same time that empirical
positivism (positivism in science) had reached such a high ascendancy in intellectual history). So now, instead of law being a mathematics, it was more in the nature of an empirical growth science.  But because judges were not equipped to be the governors of such a venture, deference had to be given to the legislative organs -- because they were more equipped to configure good (and even correct) public policy. Although there was a segment of realist thought that tried to say that judges should interpret laws consistent with empirical science -- lawyers tended to call it "sociological jurisprudence" -- it failed for obvious reasons. Instead, the king of jurisprudence in American legal culture became positivism. Holmes was therefore an integral figure in both realism (that judging is not an a priori craft) and positivism (that legislatures have the ultimate legitimacy in this respect).

If one treats the constitutional convention as an assembly, one can see why Holmes would defer to constitutional commands that have more of a clear meaning rather than deferring to legislative and pragmatic goals when the words are the especially fluffy ones. So Holmes very much would defer to the clear commands of the positive law, even where he disagreed with them, because legislatures write the law (it being only policy) and because judges are not to impose their systematicized constructs upon the legal system under warrant of finding truth through legal orthodoxy (which is a myth).

Holmes really was an interesting American thinker. Every bit as important in his circles as James, Dewey or Rorty was to theirs (although I am not a big fan of Rorty myself).