Robert J Sharpe
- Published in print:
- 2020
- Published Online:
- June 2020
- ISBN:
- 9780198850410
- eISBN:
- 9780191885433
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198850410.003.0005
- Subject:
- Law, Private International Law
This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges ...
More
This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges always decide according to the letter of the law. The chapter explores the reasons for legal uncertainty and examines the constraints that control judicial decision-making. Law is uncertain because it is necessarily general and its application in any particular case depends upon the context. This means that judges often have a choice but that choice is constrained by several factors, especially by the obligation to provide a reasoned judgment.Less
This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges always decide according to the letter of the law. The chapter explores the reasons for legal uncertainty and examines the constraints that control judicial decision-making. Law is uncertain because it is necessarily general and its application in any particular case depends upon the context. This means that judges often have a choice but that choice is constrained by several factors, especially by the obligation to provide a reasoned judgment.
Frederic R. Kellogg
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226523903
- eISBN:
- 9780226524061
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226524061.001.0001
- Subject:
- Law, Legal History
This is a study of Justice Oliver Wendell Holmes Jr.’s original contribution to both legal logic and general logical theory. Conventional legal logic has focused on the operation of judges deciding ...
More
This is a study of Justice Oliver Wendell Holmes Jr.’s original contribution to both legal logic and general logical theory. Conventional legal logic has focused on the operation of judges deciding the immediate case. Holmes (from analogies with natural science) came to understand law as an extended process of inquiry into recurring problems. The role of the legal profession is thereby recast by Holmes to recognize the importance of input from outside the law—the importance of the social dimension of legal and logical induction. Lawyers and judges perform an important but often largely ancillary role, one that must nevertheless be evaluated from the standpoint of a logical method prioritizing experience over general propositions. Addressing the nature of the difficult case, Holmes emphasized an aspect of uncertainty distinct from that commonly envisioned for the deciding judge. Rather than unclarity or contradiction within the settled law, or vagueness in the meaning or application of an applicable rule, Holmes focused instead on the relation of a novel or unanticipated fact to an underlying and emergent social problem. The appearance of legal uncertainty, where opinions and authorities are sharply divided in a controversial case, signals the early stage of a broader social continuum of inquiry. It is not then strictly a legal uncertainty, and it is a mistake to expect that judges alone can immediately resolve the larger problem.Less
This is a study of Justice Oliver Wendell Holmes Jr.’s original contribution to both legal logic and general logical theory. Conventional legal logic has focused on the operation of judges deciding the immediate case. Holmes (from analogies with natural science) came to understand law as an extended process of inquiry into recurring problems. The role of the legal profession is thereby recast by Holmes to recognize the importance of input from outside the law—the importance of the social dimension of legal and logical induction. Lawyers and judges perform an important but often largely ancillary role, one that must nevertheless be evaluated from the standpoint of a logical method prioritizing experience over general propositions. Addressing the nature of the difficult case, Holmes emphasized an aspect of uncertainty distinct from that commonly envisioned for the deciding judge. Rather than unclarity or contradiction within the settled law, or vagueness in the meaning or application of an applicable rule, Holmes focused instead on the relation of a novel or unanticipated fact to an underlying and emergent social problem. The appearance of legal uncertainty, where opinions and authorities are sharply divided in a controversial case, signals the early stage of a broader social continuum of inquiry. It is not then strictly a legal uncertainty, and it is a mistake to expect that judges alone can immediately resolve the larger problem.
Susanne K. Schmidt
- Published in print:
- 2018
- Published Online:
- February 2018
- ISBN:
- 9780198717775
- eISBN:
- 9780191787287
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198717775.003.0003
- Subject:
- Political Science, European Union
Chapter 3 turns to the analysis of case-law development. The overlapping nature of EU and domestic legal orders, coupled with the great material detail in the EU Treaty, leads to a state of legal ...
More
Chapter 3 turns to the analysis of case-law development. The overlapping nature of EU and domestic legal orders, coupled with the great material detail in the EU Treaty, leads to a state of legal uncertainty concerning the reach of EU law. Some private actors benefit from drawing on this supranational, alternative legal setting. The interpretation of the four freedoms and citizenship shows that legal uncertainty about the Treaty’s ever-broader scope is embedded in a path-dependent interpretation of rights. Principles established in one area are transferred to other areas, as most private actors perceive there to be benefits from such a transfer and legitimize their claims through established principles. Legal uncertainty and path dependence appear contradictory, but they are helpful concepts for understanding how the Court can further the stability and predictability of European law while giving new incentives for further integration.Less
Chapter 3 turns to the analysis of case-law development. The overlapping nature of EU and domestic legal orders, coupled with the great material detail in the EU Treaty, leads to a state of legal uncertainty concerning the reach of EU law. Some private actors benefit from drawing on this supranational, alternative legal setting. The interpretation of the four freedoms and citizenship shows that legal uncertainty about the Treaty’s ever-broader scope is embedded in a path-dependent interpretation of rights. Principles established in one area are transferred to other areas, as most private actors perceive there to be benefits from such a transfer and legitimize their claims through established principles. Legal uncertainty and path dependence appear contradictory, but they are helpful concepts for understanding how the Court can further the stability and predictability of European law while giving new incentives for further integration.
Frederic R. Kellogg
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226523903
- eISBN:
- 9780226524061
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226524061.003.0004
- Subject:
- Law, Legal History
Holmes in the 1870s rejected static analytical theories of law for a diachronic and transformative perspective, drawing upon Whewell’s History of the Inductive Sciences. He extended to law a question ...
More
Holmes in the 1870s rejected static analytical theories of law for a diachronic and transformative perspective, drawing upon Whewell’s History of the Inductive Sciences. He extended to law a question that John Herschel had asked of science: “What is the act or series of acts of the mind in constructing general propositions, and when constructed, in what manner do we rest in them as expressive of truth?” Holmes amended this question to replace “mind” with “many minds.” His 1899 address, “Law in Science and Science in Law,” summarizes his research and elucidates its ongoing influence on his jurisprudence. Influenced by Mill’s minimal empiricism, an 1873 essay depicted the “growth of the law” through “line-drawing” in relation to opposing “poles,” described as “clusters” of prior-decided cases. This often “arbitrary” line was a reference to the context of reevaluation in light of new information. It suggests the practical resolution of borderline cases. The conventional conception of vagueness suggests that the issue is indeterminate, but Holmes’s position is that, notwithstanding the appearance of linguistic indeterminacy, conflicts must be resolved through adaptation and specification, or confront failure and the resort to violence.Less
Holmes in the 1870s rejected static analytical theories of law for a diachronic and transformative perspective, drawing upon Whewell’s History of the Inductive Sciences. He extended to law a question that John Herschel had asked of science: “What is the act or series of acts of the mind in constructing general propositions, and when constructed, in what manner do we rest in them as expressive of truth?” Holmes amended this question to replace “mind” with “many minds.” His 1899 address, “Law in Science and Science in Law,” summarizes his research and elucidates its ongoing influence on his jurisprudence. Influenced by Mill’s minimal empiricism, an 1873 essay depicted the “growth of the law” through “line-drawing” in relation to opposing “poles,” described as “clusters” of prior-decided cases. This often “arbitrary” line was a reference to the context of reevaluation in light of new information. It suggests the practical resolution of borderline cases. The conventional conception of vagueness suggests that the issue is indeterminate, but Holmes’s position is that, notwithstanding the appearance of linguistic indeterminacy, conflicts must be resolved through adaptation and specification, or confront failure and the resort to violence.
