Legal scholars have had great debates about what constitutes the basis of legal decision making. It is important to understand this dispute before one can properly understand the claims that empirical researchers make about Supreme Court judging. In this section, I describe the different views that American legal culture has generated about the concept of legal justification. I present these views historically at first, but develop them categorically as the story progresses. What I show is that all of the views fit into three basic schools of thought: determinism, structuralism and skepticism. I define and explain these terms below. I begin my discussion with the classical approaches.

A. Determinism

In the mid to late 1800s it was common to hear the view that "law" was an autonomous branch of reasoning – that rules of law were discovered sort of in the manner that are rules of physics or geometry.[1]  The scholar who is most associated with the comparison of law to mathematics is probably Christopher Columbus Langdell, the professor and dean of the Harvard Law School who invented the "case method" of legal instruction. Although Langdell began teaching at Harvard in 1870, the views that he became associated with had apparently already become popular in legal culture since at least the time of the Civil War.[2]

Langdell taught that the specific common-law rules that had developed in England and were continuing to develop in America were capable of being derived logically (or necessarily) from the more general category of right to which they belonged.[3]  So, for example, once one analyzed the concept of a "contract" and discovered its core properties – an autonomous exchange of detriment – one would be forced to arrive at the rules for offer, acceptance and consideration.[4]  These rules, Langdellians claimed, followed necessarily from their mother concept. Just as importantly, the process of their discovery was "self contained," meaning you did not have to analyze anything other than legal ideas to find them. It was said, therefore, that you could resolve all future disputes about broken promises among citizens – be it between merchant-and-consumer or prom dates – by simply looking inward at "law" and applying necessary rules.

Langdell's orthodoxy – often labeled "formalism" – is different from the other legal classicists that preceded him. First, formalism is more specific in describing “law's” method than the other philosophies that tried to objectify legal decision making. It not only declares that judging is objective; it tries to show how its process makes it so. In doing this, however, Langdell unfortunately placed all of “law's” hope into a jurisprudence founded upon Platonic conceptualism and Aristotelian logic. That is, at its epicenter, Langdellian formalism appeals to nothing but the necessary essences of concepts, reasoning by analogy and syllogisms.

This is clearly different from the way that other classical theorists had described the judicial witchcraft. The famous English jurist and scholar William Blackstone, for example, had stressed the judge's special wisdom in matters of tradition and nature as the source of “law's science.” Blackstone argued that the common law which had developed in England was really nothing more than the recognition of those sacred customs which made up the culture and tradition of the society and as well the natural order of things.[5] Hence, tradition and natural law made up the Blackstone wing of classicism, while analytic conceptualism drove the Langdellian view of "law."

But although the two brands of classicism have different justificatory rhetoric, they share the same fundamental approach to legal epistemology. Stated another way, they both assert something critically important about the concept of justification: it is "out there" to be found. All forms of legal classicism, it seems, assert four general premises about legal justification: (1) that it is more important to justices than public policy; (2) that it is something separate from a justice's "private" views about politics; (3) that it can be objectively accessed; and (4) that doing so produces correct answers to legal questions. Those who tend to believe these premises ultimately adopt the view that judges do not make law, they find it. I refer to this view as legal determinism.

Determinism was clearly the dominant view in American legal thought from the founding of the country throughout most, if not all, of the 1800s. It was one of the reasons that Alexander Hamilton argued in the Federalist Papers that Americans should not fear the federal judiciary. Hamilton argued not only that the judiciary lacked basic political power – the power over the "purse" and "sword" – but that it was fundamentally different from the other branches of government. It was different, he claimed, because judges reach their decisions "neither [by] force nor will, but merely judgment,"[6]  meaning that legal justification governs choices, not visa versa. This view is also captured in the famous quotation of Chief Justice John Marshall, who in 1824 wrote, "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law and can will nothing."[7]  Interestingly, determinism seems at times to motivate current Supreme Court justice Antonin Scalia, who wrote in a 1990 opinion:

The very framing of the issue that we purport to decide today – whether our decision ... shall “apply” retroactively – presupposes a view of our decisions as creating the law, as opposed to declaring what the law already is. Such a view is contrary to that understanding of “the judicial power,” US Const, Art III, Sec. I, cl I, which is not only the common and traditional one, but which is the only one that can justify courts in denying force and effect to the unconstitutional enactments of duly elected legislatures ... To hold a governmental act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it ... (Emphasis in original).[8]

Legal determinism, of course, is no longer popular in legal culture. The date that it officially died is hard to assess. Some scholars place its demise as late as 1937, when the Court finally succumbed to the Roosevelt administration's New Deal programs.[9]  If, indeed, this is the date when the legal Humpty fell from the wall, it is safe to say that the process of demise began with Justice Oliver Wendell Holmes' writings in the late 1800s. Holmes was the first prominent legally-trained American to reject at least the classical versions of determinism. His famous two-volume treatise, The Common Law, was written in 1881, more than 21 years before he was appointed to the Supreme Court. Its opening paragraph contains a passage that 20th century legal scholars have now made famous:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law ... cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.[10]

Holmes' basic point is that judicial decision making is not a function of logic or any other kind of a priori judgment; it is, simply, an endorsement of desired public policy. One must be careful, however, not to lump Holmes with the more radical post-modern movement that I will describe in a moment. As legal historian G. Edward White shows, Holmes was only rejecting classicism, not determinism as I have defined it.[11]  Stated another way, he was rejecting only the idea that law's justification was found in an a priori format. He still believed that "correct" answers existed to legal problems,[12]  but being "correct" simply meant choosing the best public policy as dictated by the empirical needs of the time. For Holmes, therefore, legal epistemology is still objective – the truth is still outside of the mind and in need of being "found." But finding it takes the form of factual positivism rather than premises, "logic," nature's order or any other deductive rhetoric.

Holmes' effect on legal culture occurs at two distinct levels: epistemically and jurisprudentially. I discuss each of these unique contributions separately. Holmes' effect upon legal epistemology is discussed first. White characterizes Holmes' approach as an appeal to "policy science."[13]  Although this is no doubt accurate, a broader term is needed so that one can classify all of the various claims that academics will make in the aftermath of Holmes when they marry law with various forms of social science. Therefore, I refer to the view that "law" is an empirically-driven, result-oriented science as progressive determinism and the view that “law” is an autonomous, a priori science as classical determinism. The term "progressive determinism" can be used to describe any combination of law with social science, so long as the latter is committed to scientific methodology. [14]  A good example is the movement in law and economics, which basically says that classical determinism should be shunned in favor of creating economically efficient rules.

The central feature of progressive determinism is the claim that empirical indices and the knowledge produced by studies of social phenomena provide the best basis for legal decision making. This turns “law” into a "growth science" – i.e., a psychology or an anthropology rather than a physics or a calculous – that allows it to find different "truths" as knowledge progresses. It makes no difference that the paradigmatic answers are inductive or probabilistic; such is the nature with the substitution of what philosophers call synthetic truths for analytic ones. The most important point is that progressive determinism purports to be objective; it selects its truth through the use of empiricism.

Progressive determinism had quite an impact on legal culture. In the 1920s and 1930s, it was especially popular with a group of legal scholars who became known as "the realists" and who created a body of work that is remarkably similar to Holmes' views.[15]  It also influenced the filing of famous legal briefs. In 1908, for example, future Supreme Court Justice Louis Brandeis authored a brief in Muller v. Oregon containing 113 pages of sociological data and only two 2 pages of legal authority.[16]  The crowning achievement of progressive determinism is probably the Court's unanimous decision in Brown v. Board of Education, which relied upon social science data about the status of African American school children as the basis for declaring segregation illegal.

Although progressive determinism remains somewhat of a force in legal culture today, it, like all movements in legal epistemology, eventually fell out of fashion.[17]  One of the reasons why its popularity diminished is probably because of the inability of social science to produce many universal empirical truths. Economists, for example, generally do not see the same reality as sociologists or political scientists (who themselves are not so agreeable about the phenomena they study). Other reasons for progressive determinism's decline might be placed on the legal system itself, which does not train judges to understand statistical methodology and which relies upon an organizational culture that produces two "experts" paid by adversaries to say opposite things. Science simply doesn't look like "science" very well in the courtroom. Whatever the reasons, progressive determinism is now largely dormant in American jurisprudence, although it not completely dead.

Having just looked at the new epistemology that Holmes was central to creating in legal culture, I now consider his impact upon 20th century jurisprudence. There are two developments that are critical to understanding the consequences of Holmes' "progressive" views: state building and the role of legislatures. It is no coincidence that classical determinism fell into disfavor precisely at the time that the federal government began to create its modern administrative state. One of the reasons that legal culture described its judicial orthodoxy as self-justifying, I contend, is largely because agrarian society had not produced a significant body of positive law (statutes and administrative regulations) that judges could use to resolve cases. Lacking large codes that tried to comprehensively prescribe the conduct of discrete activities – e.g., the Uniform Commercial Code, the Internal Revenue Code, etc. – classical judges were left to their own judgments about how to structure certain segments of social order. It is no wonder, therefore, that legal culture invented a rationalization for why its contribution to policy was special. What else could classical judges rely upon to govern?

But as the modern administrative state was created, federal and state governments started producing more and more positive law. Scholars have described this phenomenon in such terms as the growth of "legalism," "statutification" and even "hyperlexis."[18]  The issue that the growth of positive law presented for jurisprudence in general, and for the role of the judge in American government in particular, was indeed a defining one. What do judges do when they are told more and more by other organs of government how they should rule? Progressive determinism really could not answer this question very well. If, as the new epistemology said, “law” was ultimately a kind of empirical policy science, what should judges do with all of these new regulations and statutes? Should they second guess positive law by obtaining empirical data and conducting policy analysis? Should they read and cite journal articles instead of precedent? As I indicated above, it is true that on some occasions justices did declare acts of Congress unconstitutional by appealing to social science statistics, but, on the whole, this was only an episodic happenstance and was fundamentally impractical.

These problems led mainstream legal culture into its only workable premise of retreat: that the "wisdom" of policy should be judged by the other organs of government.[19]  I call this the "deference principle." It says, simply, that judges should substantially defer to the wishes of political assemblies because they are structured better for making policy choices. The only area where large deference might not be given is if individuals are being denied important civil liberties or if political minorities who cannot protect themselves from mob rule are being abused.[20]  But in the more "general" matters of economic regulation, the common law, the powers of the federal sovereign, etc., the new jurisprudence held that justices should allow political assemblies considerable latitude to govern.

What is interesting about the "new jurisprudence" is what it does to the form of legal justification. When you combine the two great consequences of Holmes' thought – that “law” is only policy, and that courts should defer significantly to assemblies – the inevitable result is the rise to domination of legal positivism in American legal culture. “Law,” according to positivists, is only what the legal text says it is, and nothing more. Judges are not logicians, and nor should they be acting as legislators. What they should be, basically, are readers. Some in the present day might even call them bureaucrats of a sort. Hence, in the modern 20th century, legal justification begins to rely heavily upon appeals to word analysis – deploying, e.g., the "plain meaning" rule and statutory canons of construction. Once again, it is no coincidence that the use of this kind of rationalization accompanies the construction of the administrative state and its resulting explosion of legalism.

But this is not the end of the dispute about legal justification; it is only the middle. Many legal scholars did not agree with either the new jurisprudence or the progressive determinism that ultimately helped to create it. The dissenters basically fall into two opposing groups: those who want to reestablish some role for analytic conceptualism in judging, and those who want to abolish the idea of justification completely. I discuss the former first.

B. Structuralism

There are two things that some scholars did not like about progressive determinism. The first is that it did not seem to describe very well the phenomenon of judging. Quite simply, those who actually participate in juristic activities seem to be genuinely influenced by a contemplative force in "law" that is at least equally important as the urge for a particular result. Much of what judging seems to be, in fact, is an attempt to broker the one to the other. The second objection that scholars had to progressive determinism is its suggestion that conceptualism had absolutely no legitimate role in the judicial mind.[21]  This seems like an odd suggestion because it is not the ethic that dominates non-legal reasoning. You would not say to someone involved in any intellectual endeavor, be it empirical or otherwise, that the goal is to be non-analytical. To some scholars, then, progressive determinism seemed to be as much of an exaggeration of the data side of the judging equation as classical determinism was on the theory side.

But it was not only the new epistemology that drew objection, it was legal positivism as well. Specifically, scholars did not like how positivism defined the concept of “law.” They did not like the idea that “law” consisted of nothing but the articulated commands of a sovereign. It is undeniable, of course, that “law” consists primarily of legal rules. But, these scholars said, there should be some other kind of amorphous property to a legal system that makes sure its commands are rationally defined, meaningfully applied and given a sense of purpose.[22]

This realization led to the creation of a new school thought, which I call structuralism. The basic goals of structuralism are twofold: (1) to re-establish the idea that judging is "special" or distinct from other kinds of policy choice; and (2) to define its special quality ultimately in epistemic or justificatory terms. To accomplish this, structuralists basically emphasize two related points: that the judging process is significantly different from the legislative one, and that, as a result, justices are influenced by something called legal "principles" or "standards" – things that give weight, but not a single conclusion, to decision making.

The legal philosopher who is best associated with structuralism is Ronald Dworkin. One can understand Dworkin's views best by considering his contribution to the concept of "discretion." Dworkin says that discretion exists in two forms: as naked power and as an exercise of "judgment."[23]  The former needs little, if any, decisional basis, but the latter requires something to structure how decisions are reached.[24]  A football coach may have power to select a play, for example, but a referee uses "judgment" to decide whether pass interference occurs. Both use “discretion,” but one relies upon the license of authority, the other upon the application of an external standard to what he or she sees. Based on this distinction, Dworkin argues that legal systems are composed not only of rules, but upon "principles" that give a moral structure to choice.[25]

Although Dworkin did not use a football game as his metaphor -- that is merely the way I elected to convey his point -- the metaphor is nontheless revealing. It not only says that the policy process in majoritarian institutions can be thought of as a competition of sorts, but it suggests that the participants of the policy game are under two distinct kinds of constraints. The coaches and players are constrained by their interdependent choices – e.g., if one falls behind, one must select more passing plays – but the referees (i.e., judges) are constrained by something that is cognitive and justificatory: the meaning of rules and standards, and how to apply them.

Other scholars besides Dworkin have offered a similar description of judging. However, because they are less philosophical in method, their emphasis is more upon judicial process rather than how abstract conceptualism structures choice. Although the most famous of these scholars in legal culture is probably Henry M. Hart Jr. and Albert Sacks, who are best known for creating a view of judging in the 1950s called "reasoned elaboration,"[26]  I think that political scientist C. Herman Pritchett offers the best account of process-centered structuralism. Pritchett, unlike the philosophers, studied Supreme Court judging empirically. He is best known for creating the first major work in judicial behavioralism with his 1948 analysis of voting on the the Roosevelt Court from 1937 to 1947.[27]  He once said of that which he studied:

[P]olitical scientists who have done so much to put the “political” in “political jurisprudence” need to emphasize that it is still “jurisprudence.” It is judging in a political context, but it is still judging; and judging is something different from legislating or administering. Judges make choices, but they are not the “free” choices of Congressmen. ... There is room for much interpretation in the texts of constitutions, statutes and ordinances, but the judicial function is still interpretation and not independent policy making. It is just as false to argue that judges freely exercise their discretion as to contend they have no policy functions at all. Any accurate analysis of judicial behavior must have as a major purpose a full clarification of the unique limiting conditions under which judicial policy making proceeds.[28]

Perhaps the best description of what structuralism says about legal epistemology can be analogized to the contribution that Karl Popper made to the philosophy of science. Popper was a philosopher who is best known for contributing a profound piece of wisdom to the search for certainty in empirical science. He said, in essence, that what is known with certainty is not truth, but falsity.[29]  Thus, one gains support for hypotheses only by getting verification that their null is false. Stated another way, rationality often tells one more clearly about what is wrong than what is right.

Structuralism says something similar about jurisprudence. It says that there is a pre-existing legal superstructure that judges work within and that determines not what is the one correct answer for every case, but, rather, which set of answers are "incorrect." It, in essence, takes choices off the table. Legal orthodoxy, therefore, does not tell justices how to vote on matters of policy; it tells them which legally-correct choices are available to choose from. "Law," according to this view, is a decision structure or filter. Dworkin uses helpful metaphors to describe this phenomenon. One says that judges are like authors of a "chain novel," being asked to write a the current chapter in a book that has already begun.[30]  The choices of what to write are bound and chained to what has already been authored. He also at times refers to the force of law as "gravitational," an obvious reference to the force that structures motion in the universe.

Importantly, however, structuralism concedes that, at least in "hard" cases, "law" can do no more than create an array of limited choice for justices. How jurists choose among the remaining options that “law” has pre-selected is nothing but an endorsement of favorite policy. Nothing can avoid this. What structuralism seems to do, therefore, is say to all of the views of legal epistemology – including the one I have yet to discuss – that each is correct in describing only a portion of the judicial mind. Stated another way, what judging consists of is pre-existing conceptualism applied to the empirical reality of current society through the lens or medium of political ideology. This is a rather large view that I more fully develop elsewhere. For now, the only point that I am stressing is that structuralism attempts to harmonize all of the approaches to legal epistemology into one unifying explanation.

C. Skepticism

Having just described structuralism, I now describe the second and final group of scholars who rebelled against legal positivism and progressive determinism. These scholars are known by various names: "post realist," "post modern," "critical legal theorists," etc. Their central desire is to go in the opposite direction of structuralism. Instead of trying to repair the role that conceptualism plays in law, they want to rid law completely of the idea of justification, so that neither empiricism, logic, contemplative structures or anything outside of politics remains. Although some refer to their work as legal "deconstruction," I use the philosophic term skepticism to describe their approach to legal epistemology. The reason is simple. "Skepticism" is the term that philosophy uses to describe the view that nothing can constitute knowledge, no matter how well it is thought to be known. Because legal skepticism merely borrows philosophy’s doubting techniques when creating legal criticism, I use the philosophical term.

Legal skepticism came to power in American legal culture after the 1960s generation came to power in academia, starting in the 1970s and reaching its peak in the 1980s. The most notorious movement in legal skepticism is known in law schools as Critical Legal Studies (Crits), although other kinds of “critical” perspectives are found in all corners of academia. The Crits are leftist in orientation and use law schools as a platform to promote various radical views, such as: justification is a myth; “principles” are imaginary and inherently contradictory; and at the epicenter of our language exists nothing except dichotomous pairs of opposite concepts, the prevailing one always being culturally and institutionally-constructed.[31]  Meaning, therefore, is inherently subjective and determined by powerful structures and entities. There is no such thing as "objectivity" or "judging" – there is only the political choices of the powerful and the ideology they espouse.

At the heart of legal skepticism lies two basic assaults against the justificatory edifice of "law." The first is the attack against legal text. It is by far the most central to my concerns, because I claim elsewhere to have refuted it both philosophically and empirically. The attack simply declares, a priori, that language is of such a nature that it cannot ever "tell" its reader what it "says." The confusion that supports this premise is the claim that words do not have "real" references in empirical reality and that linguistic meaning is ultimately chosen by the mind of the reader.[32]  Hence, judges cannot objectively base their rulings upon the "plain meaning" of text, because there is no such thing as a "plain meaning." I call this the indeterminacy principle. As I show elsewhere, however, it is founded upon a misunderstanding of the dominant works in language philosophy as well cognitive linguistics (the empirical study of the effect that language has upon the brain).

Nonetheless, the indeterminacy principle is very popular among skeptics. It is, unfortunately, the view adopted by once-leading empirical scholars of the Court, Jeffrey Segal and Harold Spaeth, who are famous for creating a body of research in political science that claims to prove skepticism's critique of the Court. In their latest work, they take the position that there is no such thing as "plain meaning" in language because, “English as a language lacks precision. Virtually all words have a multiplicity of meanings ... [that] may directly conflict.”[33]  (They give the example of the word “sanction,” which means to punish or to reward.)[34]  But a better rendition of the indeterminacy principle is provided by law professor Elizabeth Mensch, who writes:

[The] dilemma [of justification] does not vanish when the "law" to be applied comes not from cases but from the language of statutory or constitutional provisions, or the language of a private contract. There was a time when words were thought to have a fixed, determinant content, a meaning partaking of objective Platonic forms. ... no interpretation or application of language can be logically required by the language itself. Words are created by people in history, and their definition inevitably varies with particular context and with the meaning brought to them by the judges who are asked to interpret them. That act of interpretation is, in every instance, an act of social choice.[35]

The second attack against legal justification is waged against Dworkin's "legal principles." This attack asserts, a priori, that principles cannot truly structure outcomes because they amount to nothing but self deception. Segal and Spaeth refer to this as "motivated reasoning," a term they borrow from a perspective on rationalization in psychology. The authors write:

Those who wish to argue that the Court merely follows established legal principles in decided cases (yes, such views exist, as we have documented in Chapters 2 and 7) certainly have their work cut out for them. ... [Such a view] fails to appreciate the fundamental influence of motivated reasoning in human decision making. As classic social psychological findings demonstrate, the ability to convince oneself of the propriety of what one prefers to believe psychologically approximates the human reflex. This is particularly true when plausible arguments support one’s position, as is invariably the case for the types of issues the Supreme Court decides.[36]

Skepticism's ultimate goal is twofold. It first desires to eliminate completely the idea that justification has any real role in legal decision making, and, secondly, it transforms rationality into a tool or instrument of underlying desires. In essence, it subordinates epistemology to psychology. It is common, for example, to hear Segal and Spaeth and other proponents of skepticism assert, often a priori, that all legal issues before the Court have equal justification on either side,[37]  that justices merely choose the case result that favors their political ideology;[38]  and that they simply manufacture an appearance of coherency in case opinions that cloaks this underlying fiction.[39]  "Law," therefore, is nothing but a weapon or tool used as a means to satiate underlying ruling desires. From this point forward, I refer to this view as instrumentalism.

Instrumentalism can be understood as applied skepticism. What is key about instrumentalism is its claim that behind the logic of each judicial decision, there is a hidden ulterior motive. By definition, the motive cannot be a desire for objectivity or integrity in “law” itself, because skepticism holds these values to be nothing but a pretext. It also cannot be a desire for empirically "correct" rulings – skepticism abhors all knowledge claims, be they grounded in logic or fact. Segal and Spaeth, for example, specifically dismiss the idea that justices are motivated to find "correct" answers. They write:

Of course, humans are also motivated to find correct answers. Baumeister and Newman refer to this as the “intuitive scientist” model. They refer to the search for preferred answers as the “intuitive lawyer” model. We have little doubt that Supreme Court justices are better represented as lawyers than as scientists.[40]

By definition, then, instrumentalism says that the ulterior motive of a justice is always the ideological desirability of public policy, plain and simple. "Law," therefore, is nothing but the ideological expression of political values. Stated another way, there is no "law" in the grandiose sense that legal theorists use the word; there is only power. Instrumentalism is, in essence, progressive determinism stripped of its empiricist foundation and objective epistemology. And according to Segal and Spaeth, anyone who clings to the view that legal justification is a genuine decision structure is presenting a hope that should be regarded as “the fatuousness characteristic of Pollyanna;” a “fairy tale,” “myth,” and “mythology.”[41]

I have now finished with my discussion of the problem of justification in "law." Table 1.1 appears below that summarizes the various approaches I have described. The table is quite helpful to understanding this – I highly recommend that you print it.

Table:  http://ludwig.squarespace.com/storage/table1.1.doc