Lady Justice is the symbol of the judiciary. Justice is depicted as a goddess equipped with three symbols of the rule of law: a sword symbolizing the court's coercive power; scales representing the weighing of competing claims; and a blindfold indicating impartiality.
According to Richard Posner, "The skeptical vein in American thinking about law runs from Holmes to the legal realists to the critical legal studies movement, while behind Holmes stretches a European skeptical legal tradition that runs from Thrasymachus (in Plato's Republic) to Hobbes and Bentham and beyond".[5]
...men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite.The common law is not a brooding omnipresence in the sky
Justice Oliver Wendell Holmes
Origin
Skepticism (American English and Canadian English) or scepticism (British English and Australian English) is a philosophical approach that includes a scientific method and a rejection of unevidenced claims to certainty. Skepticism has been known in various degrees. Pyrrho was the first philosopher who developed it to a high degree. Greek Sophist were also skeptics. Protagoras was a famous Greek Sophist. Greek Sophists were also law teachers.
Writing about the courts of Athenian democracy, Bertrand Russell states: "In general, there were a large number of judges to hear each case. The plaintiff and defendant, or prosecutor and accused, appeared in person, not through professional lawyers. Naturally, success or failure depended largely on oratorical skill in appealing to popular prejudices. Although a man had to deliver his own speech, he could hire an expert to write a speech for him, or, as many preferred, he could pay for instruction in the arts required for success in the law courts. These arts the Sophists were supposed to teach".[6]
Stumpf writes about Sophists as, "It was their skepticism and relativism that made them suspect. No one would have criticized them for training lawyers, as they did, to be able to argue either side of a case" Philosophy, History & Problems, p.30. American legal skeptics are influenced by 'pragmatism' of William James, Dr. John Dewey, and F.e.S. Schiller.
Bertrand Russell declares that William James's doctrine is "an attempt to build a superstructure of belief upon a foundation of scepticism". One of the three founders of pragmatism, Schiller, considered himself a disciple of Protagoras. See [7] These are the reasons for the preference of some people for the word 'skepticism'.
Early history
Mickey Dias writes: "a preliminary warning is needed against the tendency to imagine that there is anything like a 'school' of American realists. A difficulty in the way of a coherent presentation of their views is that there are varying versions of realism as well as changes of front; positions formerly defended with zest have since been forgotten or abandoned……. Judge Jerome Frank (1889–1957), a leading exponent preferred the phrases 'experimentalists' or 'constructive skeptics', He repudiated the charge that 'the realist school embraced fantastically inconsistent ideas' by pointing out that 'actually no such school existed'. The common bond is, in his words[8] ,'skepticism as to some of the conventional legal theories, a skepticism stimulated by a zeal to reform, in the interests of justice, some court-house ways. ",[9] With such zeal to reform, legal skeptics made a revolt against the formalism.
Lord Lloyd of Hamstead has described this revolt in a wider philosophical perspective as follows:
"In the nineteenth and at the beginning of the present century, laissez-faire was the dominant creed in America. This creed was associated, in the intellectual sphere, with a certain attachment to what has been called "formalism" in philosophy and the social sciences. This was marked by a reverence for the role of logic and mathematics and a priori reasoning as applied to philosophy, economics and jurisprudence, with but little urge to link these empirically to the facts of life. Yet empirical science and technology were increasing dominating American society and with this development arose and intellectual movement in favor of treating philosophy and the social sciences, and even logic itself, as empirical studies not rooted in abstract formalism. In America this movement was associated with such figures as William James and Dewey in philosophy and logic. Veblen in economics, Beard and Robinson in historical studies, and Mr. Justice Holmes in jurisprudence. It is important to note that this movement was especially hostile to the so-called British empirical school derived from Hume, and to which Jeremy Bentham, Austin and John Stuart Mill adhered. For while it is true that these thinkers were positivist and anti-metaphysical they were for the anti-formalists, not empirical enough, since they were associated with a priori reasoning not based on actual study of the facts, such as Mill's formal logic and his reliance on an abstract "economic man," Bentham's hedonic calculus of pleasures and pains, and the analytical approach to jurisprudence derived from Austin. They were particularly critical of the ahistorical approach of the English utilitarians. Nor, unlike the sociologists of Pound persuasion, were they interested to borrow from Bentham such abstract analyses of society as his doctrine of conflicting to emphasise was the need to enlarge knowledge empirically, and to relate it to the solution of the practical problems of man in society at the present day., [10]
The new movement in jurisprudence found philosophical support of 'Pragmatism'. The principal exponent of 'Pragmatism', William James, writes: "A pragmatist turns away from abstraction and insufficiencies, from verbal solutions, from bad a priori reasons, from fixed principles, closed systems and pretended absolutes and origins. He turns towards completeness and adequacy, towards facts, towards actions, towards powers.,,[11]
This skeptical approach impressed Justice Holmes, who laid the foundation of healthy and constructive skepticism in the law. Hughes writes: "Though another half century was to elapse before the appearance of Ogden and Richard's The Meaning of Meaning, exploration of meaning of meaning of law was Holmes's pioneer enterprise.,,[12] Hughes further writes: " To me, Mr. Justice Holmes is a prophet of the Law,[13]
Oliver Wendell Holmes Jr. was graduated from Harvard Law School in 1866, and opened a private law practice. He devoted most of his energies to legal scholarship. From 1870 to 1873 he served as editor of the American Law Review and taught constitutional law at Harvard.
In 1881, Holmes published The Common Law, representing a new departure in legal philosophy. He changed the attitude of the law through his writings. The opening sentence captures the pragmatic theme of that work and of Holmes's philosophy of law: "The life of the law has not been logic; it has been experience. " As a justice, Oliver Wendell Holmes Jr. was well known for the eloquence, pungency, and abundance of his dissenting opinions––so much so that he was called the "Great Dissenter." Holmes was appointed justice in 1902, and served the Court for thirty years. At that time, many state regulatory laws were being declared unconstitutional because the Court felt they did not conform to its concept of due process of law.
In a dissenting opinion in Lochner v. New York (1905)[14] Holmes declared that the law should develop along with society and that the 14th Amendment did not deny states a right to experiment with social legislation. He also argued for judicial restraint, asserting that the Court should not interpret the Constitution according to its own social philosophy. Speaking for a unanimous Court in Schenck v. United States (1919), however, he stated that judicial review was necessary in cases involving Freedom and Speech and presented the "clear and present danger" doctrine associated with his name. Francis Biddle writes: He was convinced that one who administers constitutional law should multiply his skepticisms to avoid heading into vague words like liberty, and reading into law his private convictions or the prejudices of his class.[15]
According to Holmes, 'men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite.,[16] 'The common law is not a brooding omnipresence in the sky'.[17] Law should be viewed 'from the stance of the bad man'.[18] 'The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law'.[18] A judge must be aware of social facts. Only a judge or lawyer who is acquainted with the historical, social, and economic aspects of the law will be in a position to fulfill his functions properly.
As a justice of the U.S. Supreme Court, Holmes introduced a new method of constitutional interpretation. He challenged the traditional concept of constitution. Holmes also protested against the method of abstract logical deduction from general rules in the judicial process. According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics. He writes: "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, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.
The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
Justice Oliver Wendell Holmes
The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics., [19]
In Lochner v. New York[14] he observes that, 'General propositions do not decide concrete cases."
"General propositions do not decide concrete cases."
Justice Oliver Wendell Holmes
Holmes, also insisted on the separation of 'ought' and 'is' which are obstacles in understanding the realities of the law. As an ethical skeptic, Holmes tells us that if you want to know the real law, and nothing else, you must consider it from the point of view of 'bad man' who cares only from material consequences of the courts' decisions, and not from the point of view of good man, who find his reasons for conduct "in the vaguer sanctions of his conscience.[18] The law is full of phraseology drawn from morals, and talks about rights and duties, malice, intent, and negligence- and nothing is easier in legal reasoning than to take these words in their moral sense.[20] Holmes said: "I think our morally tinted words have caused a great deal of confused thinking. But Holmes is not unconcerned with moral question. He writes: "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law.[18]
Jerome Frank
Jerome New Frank followed Holmes skepticism, and made an elaborate system of legal skepticism. He considered himself to be 'a constructive skeptic'. He challenged the traditional conception that law consists of rules from which deductions are made. He called that conception a 'basic myth of law'. He argued that it is fruitless to seek such certainty, that the law is uncertain and that the law cannot be separated from decisions of the courts.
Frank argues that every legal controversy is unique and may not be decided by rigid universals and abstract generalizations. He calls those jurists who find legal uncertainty within the laws's formal rules 'Rule-skeptics', and those who find legal uncertainty arising from the nature of facts 'Fact-skeptics'. Dias writes: "Frank divided realists into two camps, described as 'rule skeptics' and 'fact skeptic'. The 'rule skeptics' rejected legal rules as providing uniformity in law, and tried instead to find uniformity in rules evolved out of psychology, anthropology, sociology, economics, politics, etc. Hans Kelsen, it will be remembered, maintained that it is not possible to derive an 'ought' from an 'is'. The 'rule skeptics' avoided that criticism by saying that they were not deriving purposive 'oughts', but only predictions of judicial behaviour analogous to the laws of science. Frank called this brand realism the left-wing adherents of a right-wing traditions, namely, the tradition of trying to find uniformity in rules. They, too, had to account for uncertainty in the law on the basis of rule-uncertainty. The 'fact skeptics', among them Frank, rejected even this aspiration towards uniformity. So he abandoned all attempts to seek rule-certainty and pointed to the uncertainty of establishing even the facts in trial courts. These have to be established largely by witnesses, who are fallible and who may be lying. It is impossible to predict with any degree of certainty how fallible a particular witness is likely to be, or how persuasively he will lie. All persons, judges and jurymen alike, form different impressions of the dramas unfolded before them; an inflexion or a cough may awaken subconscious predilections, varied idiosyncrasies and prejudices. Eternal verities are not to be erected on such a basis. Frank alleged that all those who write on legal certainty, not excepting the 'rule skeptics', overlook these difficulty. 'They often call their writings 'jurisprudence'; but as they almost never consider juries and jury-trials, one might chide them for forgetting jurisprudence. ",[21] "For any particular lay person", Frank writes: "the law, with respect to any particular set of facts, is a decision of a court with respect to those facts so far as that decision affects that particular person. Until a court has passed on those facts no law on that subject is yet in existence. ,[22]
Felix Frankfurter, who wrote book "Mr. Justice Holmes and the Supreme Court" published three years after the death of Holmes, observes in Nashville, Chattanooga & St. Louis Ry. V. Browning[23] that: "It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it."
It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it.
Justice Felix Frankfurter
Statutes and constitutions are inanimate object which cannot speak by themselves. John Chipman Gray, the great American Jurist, who reiterated Holmes's view, writes: "Statutes do not interpret themselves; their meaning is declared by the courts, and it is with the meaning declared by the courts, and with no other meaning, that they are imposed upon the community as law. ,[24] He further writes: "It has been sometime said that the Law is composed of two parts,-legislative law and judge-made law, but, in truth all the Law is judge-made law. The shape in which a statute is imposed on the community as a guide for conduct is that statute as interpreted by the courts. The courts put life into the dead words of the statute. 339 To quote from Bishop Hoadly.......'Nay, whoever hath an absolute authority to interpret any written or spoken laws, it is He who is truly the law Giver to all intents and purposes, and not who first who wrote and spoke them”.
↑ Hamilton, Marci. God vs. the Gavel, page 296 (Cambridge University Press 2005): “The symbol of the judicial system, seen in courtrooms throughout the United States, is blindfolded Lady Justice.”
↑ Fabri, Marco. The challenge of judicial systems, page 137 (IOS Press 2000): “the judicial system is intended to be apolitical, its symbol being that of a blindfolded Lady Justice holding balanced scales.”
↑ In the context of philosophy, some people prefer the word 'skepticism’ to 'realism' because the word 'realism' is also used for school of thought founded by Plato and his followers. The reason for this preference for the use of word 'skepticism' is not only that this word is used in the writings of skeptic jurists themselves, but also that this word is suitable in the context of history of philosophy.
↑ The Jurisprudence of Skepticism - Richard A. Posner - Michigan Law Review - Vol. 86, No. 5 (Apr., 1988
↑ Francis Biddle, Justice Holmes, Natural law, and the Supreme Court, (1960), p.lO. Biddle also tells usthat Holmes ,"refused to let his preferences (other men were apt to call them convictions) interfere with his judicial decisions…… The steadily held determination to keep his own vies isolated from his professional work is aptly shown by his famous remark in the Lochner case-the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statistics…. A constitution is not intended to embody a particular economic theory." P.IO. It is importantto note that eighty years after Lochner case (1905), Human Right Commission of Pakistan recommended that, "the confusion caused by conflict between normal Iaws and belief which does not enjoy the force of law) needs to be removed." See, State of Human Rights in 1996, at p. 46, Human Right Commission of Pakistan.
↑ Francis Biddle, Justice Holmes, Natural Law and the Supreme Court, (1960) p.49.
↑ Southern Pac. Co. V. Jensen, 244 U.S. 205, 222 (1917) (dissent).
1 2 3 4 Holmes, The Path of the Law, 10 Harvard Law Review (1897) 457
↑ Jhon Chipman Gray, The Nature and Sources of the Law. (1909), 162.
Sources
"The myth of veil of Words, an obstacle in understanding the realities of law." by Waqar Hassan.
Related Research Articles
Common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.
Jurisprudence is the philosophy and theory of law. It is concerned primarily with both what law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.
In jurisprudence and legal philosophy, legal positivism is the theory that the existence of the law and its content depend on social facts, such as acts of legislation, judicial decisions, and customs, rather than on morality. This contrasts with natural law theory, which holds that law is necessarily connected to morality in such a way that any law that contradicts morality lacks legal validity.
Legal realism is a naturalistic approach to law; it is the view that jurisprudence should emulate the methods of natural science; that is, it should rely on empirical evidence. Hypotheses must be tested against observations of the world.
Ronald Myles Dworkin was an American legal philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New York University and Professor of Jurisprudence at University College London. Dworkin had taught previously at Yale Law School and the University of Oxford, where he was the Professor of Jurisprudence, successor to philosopher H. L. A. Hart.
Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to the facts; formalists believe that there is an underlying logic to the many legal principles that may be applied in different cases. These principles, they claim, are straightforward and can be readily discovered by anyone with some legal expertise. Supreme Court Justice Oliver Wendell Holmes Jr., by contrast, believed that "The life of the law has not been logic: it has been experience". The formalist era is generally viewed as having existed from the 1870s to the 1920s, but some scholars deny that legal formalism ever existed in practice.
Lochner v. New York, 198 U.S. 45 (1905), was a landmark decision of the U.S. Supreme Court holding that a New York State statute that prescribed maximum working hours for bakers violated the bakers' right to freedom of contract under the Fourteenth Amendment to the U.S. Constitution. The decision has since been effectively overturned.
Lon Luvois Fuller was an American legal philosopher best known as a proponent of a secular and procedural form of natural law theory. Fuller was a professor of law at Harvard Law School for many years, and is noted in American law for his contributions to both jurisprudence and the law of contracts. His 1958 debate with the British legal philosopher H. L. A. Hart in the Harvard Law Review was important in framing the modern conflict between legal positivism and natural law theory. In his widely discussed 1964 book The Morality of Law, Fuller argues that all systems of law contain an "internal morality" that imposes on individuals a presumptive obligation of obedience. Robert S. Summers said in 1984: "Fuller was one of the four most important American legal theorists of the last hundred years".
Oliver Wendell Holmes Jr. was an American jurist who served as an associate justice of the U.S. Supreme Court from 1902 to 1932. Holmes is one of the most widely cited and influential Supreme Court justices in American history, noted for his long tenure on the Court and for his pithy opinions—particularly those on civil liberties and American constitutional democracy—and deference to the decisions of elected legislatures. Holmes retired from the Court at the age of 90, an unbeaten record for oldest justice on the Supreme Court. He previously served as a Brevet Colonel in the American Civil War, in which he was wounded three times, as an associate justice and chief justice of the Massachusetts Supreme Judicial Court, and as Weld Professor of Law at his alma mater, Harvard Law School. His positions, distinctive personality, and writing style made him a popular figure, especially with American progressives.
David Josiah Brewer was an American jurist who served as an associate justice of the Supreme Court of the United States from 1890 to 1910. An appointee of President Benjamin Harrison, he supported states' rights, opposed broad interpretations of Congress's power to regulate interstate commerce, and voted to strike down economic regulations that he felt infringed on the freedom of contract. He and Justice Rufus W. Peckham were the "intellectual leaders" of the Fuller Court, according to the legal academic Owen M. Fiss. Brewer has been viewed negatively by most scholars, though a few have argued that his reputation as a reactionary deserves to be reconsidered.
Pseudoskepticism is a philosophical or scientific position that appears to be that of skepticism or scientific skepticism but in reality is a form of dogmatism.
The Lochner era was a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies". The court did this by using its interpretation of substantive due process to strike down laws held to be infringing on economic liberty or private contract rights. The era takes its name from a 1905 case, Lochner v. New York. The beginning of the era is usually marked earlier, with the Court's decision in Allgeyer v. Louisiana (1897), and its end marked forty years later in the case of West Coast Hotel Co. v. Parrish (1937), which overturned an earlier Lochner-era decision.
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment. Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. Heightened scrutiny is applied where a suspect or quasi-suspect classification is involved, or a fundamental right is implicated. In U.S. Supreme Court jurisprudence, the nature of the interest at issue determines the level of scrutiny applied by appellate courts. When courts engage in rational basis review, only the most egregious enactments, those not rationally related to a legitimate government interest, are overturned.
Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.
Jerome New Frank was an American legal philosopher and author who played a leading role in the legal realism movement. He was chairman of the U.S. Securities and Exchange Commission, and a United States circuit judge of the United States Court of Appeals for the Second Circuit.
"The Case of the Speluncean Explorers" is an article by legal philosopher Lon L. Fuller first published in the Harvard Law Review in 1949. Largely taking the form of a fictional judgment, it presents a legal philosophy puzzle to the reader and five possible solutions in the form of judicial opinions that are attributed to judges sitting on the fictional "Supreme Court of Newgarth" in the year 4300.
Richard Allen Posner is an American legal scholar who served as a federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chicago Law School, Posner was identified by The Journal of Legal Studies as the most-cited legal scholar of the 20th century. As of 2021, he is also the most-cited legal scholar of all time. He is widely considered to be one of the most influential legal scholars in the United States.
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.
Law's Empire is a 1986 text in legal philosophy by Ronald Dworkin, in which the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20th century. The book introduces Dworkin's Judge Hercules as an idealized version of a jurist with extraordinary legal skills who is able to challenge various predominating schools of legal interpretation and legal hermeneutics prominent throughout the 20th century. Judge Hercules is eventually challenged by Judge Hermes, another idealized version of a jurist who is affected by an affinity to respecting historical legal meaning arguments which do not affect Judge Hercules in the same manner. Judge Hermes' theory of legal interpretation is found by Dworkin in the end to be inferior to the approach of Judge Hercules.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
