Classical Legal Thought by Wittgenstein

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									Today’s Lecture:

American Constitutionalism and Classical Legal Thought

Number:

6

Lecture Organization:
• Class Announcements • Brief Review and Summary Classical Legal Thought • Introduction • How Classical Legal Thought Works • An Example: Marbury v. Madison • The ugly cases • A priori jurisprudence • Contracts and Conceptualism
Time

Class Announcements

Reading • Lochner (pay attention to Holmes dissent!) • Wilson I (mailed to you) Homework Question:
For Lochner, answer 2 questions: (1) what is the basis of the majority decision? On what is it founded? Why does it purport to be required? (2) what is the basis of Holmes’ decision? On what does it purport to be founded? Time (3) what is the basis of Harlan’s decision?

Questions?

Review

American Constitutionalism Its distinct contribution Codification of Fundamental Law Judging is “special” How Bonham’s Case is Handled Now Constitution as a “super statute”
Time

Introduction to Classical Legal Thought

Introduction -- the next step in our story is to develop America’s very first judicial style of opinion -- there is something called “classical legal thought” -- It refers to the type of decision-making style that American judges in the 1800s tended to utilize -- to understand this style of decision, we need to understand some basic points about history first …

Introduction to Classical Legal Thought

The Enlightenment -- the enlightenment had an effect upon the way that theorists described where “law” should properly come from -- for example, you had people saying it came from something external to the naked will or desire … • “right reason” • nature • self-evident truths

-- the process of finding self-evident truths (justification) is going to go through an evolution through time …

Historical Rationalizations For “Truth” and Justification Epoch-A Epoch-B Epoch-C

God Religion

“Nature” Metaphysics, A priori

Science Logic and Empiricism

Note How these epochs correlate with the epochs for the use of statutory power Statutes: Epoch-1

Epoch-2

Epoch-3 Machine Makes Right Epoch-B Epoch-C

Might Makes Right “Justification:”

Divine Right Epoch-A

*

God

“Nature”

Science

Introduction to Classical Legal Thought

“Scientizing” judging

-- the 1800s is going to see an effort to “scientize” judging (proclaiming judging is a science) Alert!
-- what is called “science” in the 1800s and what passes for science is different than today. Mostly, this is just a way of talking. Let’s examine it. • “Moral science” – this developed in the 1800s. It held that proper moral reasoning was a science. You could take the science of morality in college • The point is that it has correct conclusions that can be extracted through with proper faculties, logical deduction and valid reasoning.

Introduction to Classical Legal Thought

“Scientizing” judging

-- The POINT: Judging is going to be called a science because it will be said to have
• correct answers • a uniform, objective method for discovering the answers

Time

How Classical Legal Thought Works
-- First, let’s abbreviate it (CLT)

-- CLT says that judges find correct legal answers through two basic sources of authority:
(a) Sacred traditions (aka “the elders”) (b) “logic” or autonomous reasoning Notice!

Avoid Confusion!

For is not inconsistent with American constitutionalism. Thisexample, when interpreting the Ninth Amendment, rely upon traditions and/or autonomous logic. Same Not saying that common-law trumps a statute. All this when interpreting deciding a legal (Statutes tradition says is that, whenthe common law.issue, use can still overturn the common law. That is neither here nor there) and/or autonomous logic as your stagecraft – as your “conclusion finder.”

How Classical Legal Thought Works

The Tradition Wing William Blackstone -- Great English scholar and jurist -- argued that the common law that the judges were creating was only the recognition of the great, sacred customs and traditions -- presumably, judges did this through some kind of special craft or technique

-- his famous quote

How Classical Legal Thought Works

The Tradition Wing

Blackstone’s Famous Quote

. [The jurist is sworn] “to determine, not according to his own [The jurist is sworn] “to determine, not according to own -- Great English according to the known known laws and private judgment, but according to private judgment, butscholar and jurist the laws and customs of customs not that the not pronounce a the law, but a new the-- argued the land;common law thatnew judges were law, land; of delegated to delegated to pronounce to maintain but expound the old one. Yet the old one. Yet exception, where and to maintain and expoundthis rule admits of this rule admits of creating was only the recognition of the great, sacred exception, determination is most evidently is most reason; the former where the former determination contrary toevidently customs and traditions contrary to if it be clearly contrary to the divine law. But even in much morereason; much more if it be clearly contrary to the divine law. presumably, judges judges through judges kind ofpretend suchBut even in subsequentdid this do not pretend to make special -- cases the such cases the subsequent some do not a new to craft to technique law,make vindicate the old oneto vindicate the old one if from but or a new law, but from misrepresentation. For it be misrepresentation. For if it be found that absurd or decision found that the former decision is manifestlythe former unjust, it is -- his absurd or unjust, it is declared, not that such a sentence manifestlynot that such a declared,famous quote sentence was bad law, but that it was not was law.”bad law, but that it was not law.”

William Blackstone

How Classical Legal Thought Works

The Tradition Wing

Blackstone’s Famous Quote

. [The jurist is sworn] “to determine, not according to his own [The jurist is sworn] “to determine, not according to own -- Great English according to the known known laws and private judgment, but according to private judgment, butscholar and jurist the laws and customs of customs not that the not pronounce a the law, but a new the-- argued the land;common law thatnew judges were law, land; of delegated to delegated to pronounce to maintain but expound the old one. Yet the old one. Yet exception, where and to maintain and expoundthis rule admits of this rule admits of creating was only the recognition of the great, sacred exception, determination is most evidently is most reason; the former where the former determination contrary toevidently customs and traditionscontrary to just contrary the contrary to if it be much more if it be the divine law. But even in much morereason;No Discretion;clearly findingto the divine clearly law. presumably, one right answer judges kind ofpretend suchBut even in subsequentdid this do not pretend to make special -- cases the such cases judges through some do not a new judges the subsequent to craft to technique law,make vindicate the old oneto vindicate the old one if from but or a new law, but from misrepresentation. For it be misrepresentation. For if it be found that absurd or decision found that the former decision is manifestlythe former unjust, it is -- his absurd or unjust, it is declared, not that such a sentence manifestlynot that such a declared,famous quote sentence was bad law, but that it was not was law.”bad law, but that it was not law.”

William Blackstone

How Classical Legal Thought Works

The Tradition Wing

Blackstone’s Famous Quote

. [The jurist is sworn] “to determine, not according to his own -- Great English according to the known laws and customs of private judgment, butscholar and jurist the-- argued that the common law thatnew judges were land; not delegated to pronounce a the law, but to maintain and expound the old one. Yet this rulerule admits of exception, expound the old one. Yet this admits of exception, where creating was only the recognition of the great, sacred where the determination is most evidently contrary to reason; the former former determination is most evidently contrary to customs and traditions reason; much be clearly contrary to the divine the divine law. much more if it more if it be clearly contrary tolaw. But even in But--even in the subsequent judges through some kindpretend to such presumably, judges did this do not pretend to make special cases such cases the subsequent judges do not of a new make to technique but to vindicate the old For it be law, but a vindicate the old one from misrepresentation. one if from craft or new law, misrepresentation. For if it be found that absurd or decision found that the former decision is manifestlythe former unjust, it is -- his absurd or unjust, it is declared, not that such a sentence manifestlynot that such a declared,famous quote sentence was bad law, but that it was not was law.”bad law, but that it was not law.”

William Blackstone

How Classical Legal Thought Works

The Tradition Wing

Blackstone’s Famous Quote

. [The jurist is sworn] “to determine, not according to his own -- Great English according law DOES lawswrong … of private judgment, butscholar and jurist But when to the known go and customs the-- argued that the common law thatnew judges were land; not delegated to pronounce a the law, but to maintain and expound the old one. Yet this rulerule admits of exception, expound the old one. Yet this admits of exception, where creating was only the recognition of the great, sacred where the determination is most evidently contrary to reason; the former former determination is most evidently contrary to customs and traditions reason; much be clearly contrary to the divine the divine law. much more if it more if it be clearly contrary tolaw. But even in But--even in the subsequent judges through some kindpretend to such presumably, judges did this do not pretend to make special cases such cases the subsequent judges do not of a new make to technique but to vindicate the old For it be law, but a vindicate the old one from misrepresentation. one if from craft or new law, misrepresentation. For if it be found that absurd or decision found that the former decision is manifestlythe former unjust, it is -- his absurd or unjust, it is declared, not that such a sentence manifestlynot that such a declared,famous quote sentence was bad law, but that it was not was law.”bad law, but that it was not law.”

William Blackstone

How Classical Legal Thought Works

The Tradition Wing

Blackstone’s Famous Quote

. [The jurist is sworn] “to determine, not according to his own game! (substitute the -- Great English scholar and jurist private judgment, but according to the known laws and customs of word judging for “law”) the-- argued that the common law thatnew judges were land; not delegated to pronounce a the law, but to maintain and expound the old one. Yet this rule admits of exception, where creating was only the recognition of is great, sacred True Judging the contrary to reason; the former determination is most evidentlynever wrong! customs and traditions much more if it be clearly contrary to the divine law. But even in cases the subsequent judges do not pretend to make a such presumably, judges did this do not pretend to make special -- cases the subsequent judges through some kind of a new new law, vindicate the old one from misrepresentation. For if it be law, but tobut to vindicate the old one from misrepresentation. craft or technique For if that found that the former decision absurd or unjust, it is found it be the former decision is manifestly is manifestly absurd -- his it that such a or unjust,notis declared, not that was a sentence was was not declared,famous quote sentence suchbad law, but that itbad law, but that it was not law.” law.”
Time

William Blackstone Note: watch the language

How Classical Legal Thought Works

The analytic wing Christopher Columbus Langdell

How Classical Legal Thought Works

The “analytic” wing Christopher Columbus Langdell -- Dean of the Harvard Law School (1870-1895) -- He and others of this general time period (1850s-1900s) begin putting for the idea that judging (legal analysis) is a science. -- He invents the case book method -- students can extract the necessary components of a case decision (facts, holding, rationalization, rule of law, etc.) (by collecting this information, you will know how to decide the next case)

How Classical Legal Thought Works

The professionalization of law school -- It’s in this era when the practice of law becomes a profession

The old way to become a lawyer
-- you went to undergraduate school

-- then, after graduation, you tried to find an apprenticeship
-- a lawyer would show you the forms, pleadings, law books, statutes that you would need. He would show you how to use them

--He wouldn’t do this like it was school; you would have to work in the office for a while (sometimes several years)

How Classical Legal Thought Works

The professionalization of law school The old way to become a lawyer -- This relationship was a trade: the lawyer received free work or help; you received a legal education

-- the apprenticeship also cost a fee (I think)
-- once you completed it, you were examined by the judge or supreme court and were officially let into the profession

How Classical Legal Thought Works

The professionalization of law school The new way -- Law is a science, like medicine. -- It must be professionalized. -- You go to undergraduate, then go to professional school

How Classical Legal Thought Works

How does the “analytic” component work? -- Notice I said that CLT had two components: sacred tradition and autonomous logic -- we have yet to understand what is mean by “autonomous logic” What is it? -- syllogistic logic -- Analogical reasoning from case to case

-- If-then and either/or statements
-- necessary essences (platonic conceptualism) (in short, formalized or strict way of reasoning)

How Classical Legal Thought Works

How does the “analytic” component work? Notice the assumptions here -- formalized reasoning can be objective -- that “truth” is external to the mind and can be demonstrated in analysis and proof.

How Classical Legal Thought Works

If “law” is a science, what kind of science is it? Autonomous science -- law is like geometry -- discovering a rule of law is like discovering a rule of geometry or physics -- law is self contained. It is a “hard” science” -- THE MEANS (of deciding) ARE THE ENDS (of the decision) -- “law” is a kind of Algebra Sometimes called “formalism.”

Time

How Classical Legal Thought Works

If “law” is a science, what kind of science is it? Autonomous science -- judges find or discover their conclusions; they do not make them up

-- judging has NOTHING to do with POLITICS
Caution: Advertisement Only [law is] “a complete and autonomous system of logically consistent principles, concepts and rules. The judge’s An ideology about law much like divine right techniques were socially neutral, his private views irrelevant;taken the was more like findingabout making, a We’ve judging enlightenment’s ideas than “nature” and have scientized it. matter of necessity rather than choice.”

How Classical Legal Thought Works

Important to keep a few things in mind Only a Genre -- This is only a genre -- it is only a style of asserting for this period of craft. -- think of it like music (e.g. “rockabilly”)

One period
cryptic Platitude, maxim

Another Period
Bad Philosophy Syllogisms, if-then logic, either/or statements, analogical reasoning

How Classical Legal Thought Works

Important to keep a few things in mind Two “Wings” to the Style

Classical Legal Thought

Elders’ Style
• keeping great customs “Tradition says”

Analytical Style
• autonomous reasoning •the process is the end (“formalism”) • method = ivory tower

How Classical Legal Thought Works

Let’s have a clear definition of terms -- For clarity’s sake, and because this will be on the exam, let’s give you formal definitions of this -- I want you to keep these two ideas separate …

How Classical Legal Thought Works

Let’s have a clear definition of terms

Classical legal thought
1. “law” (as in judging) is its own science 2. composed of: A) sacred tradition (Blackstonian wing) B) analytic “logic” (Langdellian wing) 3. law is like mathematics, geometry or physics:

A) Answers pre-exist the problems;
B) The craft is self-contained (autonomous)

How Classical Legal Thought Works

Let’s have a clear definition of terms

Classical determinism 1. one right, pre-existing answer 2. certainly justified 3. only trained judges can access it

4. they are not playing politics
Time

Marbury v. Madison

Facts: -- Federalists are in retreat; they have just lost to Jefferson -- They pack the courts with federalists on the way out the door. They appoint all sorts of new judges to the bench. -- But, some commissions don’t get delivered. -- Marbury never received his commission even though he was confirmed to be a judge Question: -- He sues to get his commission

What are the facts of this case?

Marbury v. Madison

Issue: -- The Congress had a law on the books that allowed the Supreme Court to grant a Writ of “Mandamus.” (explain what a Mandamus is. Explain equitable relief. Explain the use of the word “Writ”) -- But there is a problem with the Court issuing a mandamus Question: Question: For Gryffindore points, What is the issuein someone tell me what the case? the problem is?

Marbury v. Madison

Issue:

How that, in order to get one of these things, -- The problem is should Marshall decide? you1. Great Traditions? first need to have a trial. The Supreme Court is not a trial court, it is an appellate Court.
2. Follow precedent?

3. Follow original intent of the constitution?
Question:

4. Defer to the power center?

How should Marshall go 5. Go with what O’Reilly about on television? says deciding the issue? How should he 6. Policy Engineering? approach it as a Judge?

Marbury v. Madison

Issue: -- He is going to reason his way to the result using “iron clad” logic (or at least trying to). No Maxim or Platitude -- Let’s examine Hercules’ decision

Hercules and the Syllogism

Starting point 1. The Constitution is supreme law;

2. It is more important than a mere statute;
3. Courts are asked to interpret laws;

Key premise!

Functional Logic

4. We can’t do this if we ignore the supreme law. True by Logic 5. Therefore, we are the ones who interpret the Constitution. Tremendous Conclusion

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. ..

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

Time


								
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