Law And Economics

: Law and Economics - Ethics, Economics, and Adjudication | [back] [to print] [pdf] |
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Last modified: | 2007-09-10 |
Entry status: | Final entry |
Author: | Richard Posner |

 
Richard A. Posner[1]
 
      
       There are two fundamental approaches to the judicial role—the formalist approach, and the realist approach. By the former is meant the approach that denies arole to the judge as lawmaker. Rather, the judge’s role is conceived as identifying the applicable rule of law and applying it to the facts of the case. The task of identification may well be analytic, in the sense that the applicable rule is not given but must be derived from some higher-order principle; but the assumption is that the method of derivation is logical in the sense that syllogisticreasoning is logical. The premises are given and the conclusion follows as a matter of logic rather than of emotion, hunch, or empirical inquiry. So if the question in a case were, does a rescuer have a legally enforceable contractual right to the reward that is offered for a successful rescue even if he was not aware of the reward, the answer might be: contracts are enforceable only if there is ameeting of the minds; there is no meeting of the minds in the rescue case if the rescuer was unaware of the offer of the reward; therefore the rescuer has no legally enforceable claim to the reward.
       The formalist approach, which remains dominant in the rhetoric though not the reality of adjudication in the courts of the United States, does achieve a near approach to dominance in thereality as well as the rhetoric of judicial decisions in systems in which the governing legal rules are set forth in great detail and with great clarity in legislative codes, such as the legal systems of Continental Europe. Thus, according to the comparativist John Henry Merryman, the Continental judge “is presented with a fact situation to which a ready legislative response will be readily found in allexcept the extraordinary case. His function is merely to find the right legislative provision, couple it with the fact situation, and bless the solution that is more or less automatically produced from the union. The whole process of judicial decision is made to follow the formal syllogism of scholastic logic. The major premise is in the statute, the facts of the case furnish the minor premise,and the conclusion inevitably follows.”
Clear, comprehensive legislative codes are not characteristic of U.S. law. This is due in part to the indiscipline of American legislatures (which is due in turn to the effectively tricameral character of such legislatures, with their presidential or, in the case of state legislation, gubernatorial veto power, and to the weakness of the U.S. party system),in part to the prestige of constitutional adjudication, which is necessarily “free” because of the age and the vagueness of many constitutional provisions, and in part to the common law tradition, in which judges are recognized at least by sophisticated thinkers as makers as well as appliers of law. Moreover, the practice of lateral appointment of American judges—most of whom will have had aprevious career as a legal practitioner or law professor, and so will not be as thoroughly socialized into the “official” role of the judge as oracle, rather than originator, of law as judges in the career judiciaries found in most of the world’s legal systems that, unlike the U.S., do not have an English origin—gives American judges a taste, and a felt competence, for participating in the creation andnot merely the application of law. The dearth of clear and comprehensive codes, the prestige of constitutional adjudication, and the common law tradition of judicial creativity together enable American judges to indulge their taste in innovative, policy-oriented judicial rulemaking without violating either professional or lay expectations concerning the legitimate scope of judicial discretion....