Vol. 5 No. 2 (February, 1995) pp. 68-71
SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor
REASON IN LAW, 4th ed. by Lief H. Carter. New York: HarperCollins
College Publishers, 1994. xviii + 286 pp. Paper. $20.00.
Ronald Kahn, Department of Politics, Oberlin College.
This is a superbly written, pedagogically rich, historically and
conceptually informed introduction to legal reasoning. This may
well be the very best introductory text to legal reasoning for
students of political science and legal institutions because it
is rigorous and complex in its discussion of concepts, places
legal reasoning in political and societal contexts, and is so
cleanly and thoughtfully written. Carter provides students of
quite different levels of preparation and knowledge with a
rigorous, user friendly, up-to date, and example-filled
introduction to legal reasoning and law in society.
One can get an overall view of the organization of the book by
listing its chapters: 1. What Legal Reasoning Is, and Why It
Matters; 2. Change and Stability In Legal Reasoning; 3. Statutory
Interpretation; 4. Common Law; 5. Interpreting the United States
Constitution; 6. Law and Politics.
With regard to conceptual framework, it is difficult to label
this book as primarily providing an institutional, behavioral, or
cultural approach, because there is a weaving together of all
these aspects of the study of judicial politics, and more. A
central theme of the book is hermeneutical and philosophical;
students get a superb analysis of the possibilities of language
in general and of legal language, rules, and precedent in
particular, as part of the process of political and social change
in the American context. Moreover, Carter elegantly informs the
reader of the impact of British legal history on American law,
without being pedantic. Students also get a subtle feel for
judges and lawyers making highly discretionary decisions. This is
a book about legal reasoning in the context of the study of
politics, power, societal change, as part of a liberal arts
curriculum. It is not a book on how pre-law students can be
lawyers.
At the core of the book is Carter's pragmatic views on the
relationships among politics, legal reasoning, and society.
Politics is defined as "Those things people do in
communities in order to minimize threats to their well
being." Carter continues, "Political behavior sometimes
tries to conserve what is and sometimes tries to change what
is."(p. 2). On legal reasoning, law, pragmatism, and the
role of the scholar, Carter writes the following:
"Legal reasoning refers ... to the political action of
justifying the judicial outcome to the polity. Legal reasoning is
justification that we can and do evaluate and debate; how we
choose is a mystery we cannot and probably need not fathom.(p.
vii., preface) "Law is a language by which we constantly
reconstruct our communities... It is now particularly hard to
justify that there is anything to get right in the abstract
except as it matters in practice. What I have to say about law
and theory matters less than how we evaluate the political
consequences of what judges do and say and how we converse about
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the political act we call adjudication."(p. viii, preface)
To understand Carter's disciplined, pragmatic, and, at times,
passionate views on legal reasoning, lets first consider the
functions that law serves in society. Legal reasoning, at its
best, is not simply personal or self-interested; it is somewhat
disciplined to ensure the appearance of fairness. Legal reasoning
is a glue for increasing the trust that citizens have in
government and society. Most importantly, well-crafted legal
decisions and properly chosen legal actions (or inactions) help
society by making it more stable and by aiding individuals,
groups, and society. He uses the 1992 Casey abortion rights
decision as an example of a well chosen and well crafted
decision.
Law at its worse occurs "When people believe that judges
cynically manipulate legal language to reach partisan and
self-interested political ends, faith in fairness and equity
ebbs, motives for social cooperation falter, and communal life
becomes more nasty and brutish."(p. 2) Carter fears that the
"sense of injustice" that results from such perceptions
of the law can cause explosive social change, as exemplified by
the riots in Los Angeles after the police officers in the Rodney
King police brutality case were found not guilty in 1992.
At first glance, if misread, Carter seems to be making an
argument from an ethical relativist position, because he seems to
say there are no right or wrong answers of values, only choices
which are the product of context and a highly discretionary legal
process. However, this book includes important references to
questions about ethics and to the normative issues that face
judges and lawyers. There also is a subtle argument about the
relationship between law and politics, one that suggests that
legal reasoning may be different from policy-making and politics
in important ways.
So the question becomes how different is law and politics and law
and policy-making? The reader is teased throughout the book to
think about the relationship of law and politics, while always
being reminded that legal choices take place in a changing
context. This teasing about the relationship between law and
politics is quite effective in getting students to stay with the
learning of very important (but in less well-crafted books,
boring) concepts and definitions about the different types of law
and legal reasoning. This book is very effective, pedagogically,
in not responding in a conclusionary way to this query about the
relationship of law and politics until the last chapter.
Although Carter at times argues that legal reasoning must
incorporate new legal theory and the effects of social change,
the reader may be confused as to whether judicial decision-making
should be viewed as "instrumental" or
"constitutive." Perhaps Carter wants it this way, for
pedagogical reasons. However, there may be some concerns about
this confusion, particularly by teachers of constitutional law
and teachers who emphasize the normative, rather than the
pragmatic, nature of legal reasoning and the autonomy of law and
politics.
This confusion centers on Carter's theory of judging. There is a
lack of clarity as to whether judges should be viewed as
primarily instrumental or primarily constitutive in their
decision-making. Lawyers
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as advocates are assumed to be instrumental in their legal
reasoning. Instrumental judicial reasoning views judges as using
principles and precedents simply as means to achieve policy
objectives, whether of themselves, governing coalitions,
political officials who appointed them, the electorate, or public
opinion. In such a view there is little, if any, concept of the
autonomy of law from politics or society.
Judging viewed as constitutive conceptualizes judges as making
decisions by framing legal issues, and case outcomes, only after
careful consideration (and taking very seriously) legal
principles about the nature of fundamental rights and the polity
(political and legal institutions), theories of interpretation,
and precedents, rather than viewing such principles, theories,
and precedents in primarily instrumental terms. One can ask
whether, as Carter argues, legal principles, precedents, and
interpretive theories are central to judicial decision-making
primarily because judges and courts want to be viewed as
powerful, authoritative, and trustworthy, (page 10), or whether
judicial decision-making should be viewed as good in itself, as
constitutive, because fundamental rights and polity principles in
the Constitution and principles basic to the different areas of
private law are to be sustained.
Thus, although Carter at times argues that judges take legal
reasoning seriously, he must clarify the differences between and
implications of viewing legal reasoning as constitutive and as
instrumental. He also must clarify his views about differences in
the legal reasoning, decision-making, and, perhaps, the motives
of judges, lawyers as legal advocates, elected officials, and
bureaucrats. To view the use of principles, precedents, and legal
theory by judges as primarily instrumental and justificatory
supports his disciplined, pragmatic approach to legal reasoning
at the cost of understating the constitutive nature of
decision-making process in private and public law venues.
With regard to pedagogy, this book is theoretically ambitious and
challenging for students; however, it so well written and
carefully crafted that teachers can feel at ease in using this
book with weaker students. Careful comparisons are made in each
chapter with materials that already have been presented. Carter
is also masterful at preparing students for materials that will
be presented later in the book. Also, there is enough redundancy
of concepts and definitions to make them stick, yet not so much
redundancy that gifted students will be bored by such references.
The primary strength of the book is that students not only learn,
in a cognitive sense, the differences and similarities among
legal reasoning in quite different areas of private and public
law, but they also gain a "feel" for the process of
legal reasoning, especially the discretion or choice-making by
lawyers and judges. This is very hard to do pedagogically. The
analytic elements of legal reasoning come alive for the reader as
she comes to grips with a carefully chosen Illustrative Case at
the end of each chapter. Illustrative Cases are chosen with great
care from a wide range of legal venues and historical periods.
They reinforce the idea that law and legal reasoning have
commonalities across time and areas of the law.
Each Illustrative case is followed by
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superb questions which are related, at times brilliantly, to the
materials in the chapter. In many chapters, Carter provides an
additional case(s) for comparison with the primary Illustrative
Case. With each chapter, Carter does a brilliant job in adding to
the complexity of questions and asking the student to think about
concepts studied in previous chapters.
This book is superb in helping students understand the analytic
nature of legal reasoning. The student becomes aware, through
text and their analysis of Illustrative Cases, that legal
reasoning requires judges and lawyers to analyze facts in a case
in light of legal rules, precedents, wider social reality, and
normative values which are brought to the specific case. This
book is rigorous, analytic, and very respectful of students'
analytic abilities. It is a superb text for use in introductory
and advanced undergraduate courses on law, legal reasoning, law
and politics, and courses which seek to introduce students to
private law or seek to combine materials on private law and
constitutional law.