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					          Today’s Lecture:




      Classical Legal Thought, 2




Session


 7
Review and Intro
Last Time

   Two important ideas

    • Classical Legal Thought
    •Classical Determinism
                  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)
     Classical determinism
 1. one right, pre-existing answer
        2. certainly justified
3. only trained judges can access it
  4. they are not playing politics
  Last Time

     Two important ideas

      • Classical Legal Thought
      •Classical Determinism

      Decision-Making Style in the 1800s

           1600s                  1800s
                                               Bad Philosophy
cryptic
          Platitude,       Syllogisms, if-then logic, either/or
          maxim            statements, analogical reasoning
Last Time

   Two important ideas

    • Classical Legal Thought
    •Classical Determinism

    Decision-Making Style in the 1800s


  Popular examples of the craft
John Marshall

-- known for his “Herculean” approach to
cases
• self contained, syllogistic logic. If-then,
either-or premises.
• always wanted to have an argument
better than the lawyers
(the judge-as-the-best-thinker model)
Instead of the Judge being a Gandalf or a
Sage, it is now a disciplined man of logic
(philosopher king?)
• Sherlock Holmes style to his opinions.
    --each clue = “deduction”
              Establishing Judicial Review



                                          Starting point
1. The Constitution is supreme law;
                                                 Corollary
2. It is more important than a mere statute;

3. Courts are asked to interpret laws;   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.
                                               Big Conclusion
               Establishing Judicial Review


                        -- How do we know that the Supreme
                        Court is allowed to overturn acts of
                                            Starting point
1. The Constitution is supreme law;
                        Congress?
                                                     Corollary
                         -- We know it by an act of logic (according
2. It is more important than a mere statute;
                         to Marshall).

3. Courts are asked to interpret laws;      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.
                                                 Big Conclusion
Last Time

   Two important ideas

    • Classical Legal Thought
    •Classical Determinism

    Decision-Making Style in the 1800s


  Popular examples of the craft


  “Law” as Formalistic Analysis
Christopher Columbus Langdell

-- Dean of the Harvard Law school.
-- teach the kids that legal analysis is
formalistic.
    • case book method
        -- learn law one case at a time
        -- extract parts of each case: facts,
        issue, rule of law, case reasoning
        -- the next case can be decided an
        an extension of the prior ones
        (analogical reasoning)
    • formalism = the means are the ends
    (law is like a calculus)
Side Point …

-- If you look at intellectual scholarship in
the 1800s, you will see a similar sort of
social phenomenon
    • John Austin
        -- read his works on philosophy of
        law
        -- notice how he tries to establish
        his points
        (philosophy as a calculus)
Last Time

   Two important ideas

    • Classical Legal Thought
    •Classical Determinism

    Decision-Making Style in the 1800s


  Popular examples of the craft


  “Law” as Formalistic Analysis

   Blackstionian Tradition
    William Blackstone

-- Judges never make things up, they
extract it from the past or the prior
-- Tradition and custom are important keys
to saying “what law is”
-- Even when judges create a new
precedent, they are only vindicating the
real law that should never have been
denied in the first place

				
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posted:2/4/2011
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