THE JUDICIAL PROCESS: REALISM, PRAGMATISM, PRACTICAL REASONING AND PRINCIPLES

Vol. 16 No.5 (May, 2006), pp.353-357

THE JUDICIAL PROCESS: REALISM, PRAGMATISM, PRACTICAL REASONING AND PRINCIPLES, by E.W. Thomas. New York: Cambridge University Press, 2005, 442pp. Hardback. $95.00/£55.00. ISBN: 0-521-85566-7.

Reviewed by Gilbert A. Bond, LL.M., M.A., tried both jury and non-jury cases cases during the practice of law, taught commercial law at Pace University, and served as an Assistant United States Attorney.

THE JUDICIAL PROCESS: REALISM, PRAGMATISM, PRACTICAL REASONING AND PRINCIPLES is about the methodology of judicial decision-making as it now exists and how it should exist. At the heart of the book is a fierce attack against any theory or practice that smacks of the law being a closed system in which correct legal decisions can be deduced from predetermined legal rules by logical means alone, i.e. legal positivism.

E.W. Thomas, favoring an open and transparent system, takes no prisoners. He advances an integrated and clear methodology to be utilized in judicial decision-making. It is not applicable to constitutional issues and would require some “minimal modification” to be applicable to issues of statutory interpretation. Readers are led into the esoteric world of jurisprudence, aka the philosophy of law and the science of law.

THE JUDICIAL PROCESS is informative, thought-provoking and often insightful, albeit verbose. It is also timely given the intense political nature of current federal judicial confirmation proceedings.

Several leviathans block the path to the new methodology. They include the legal doctrines of stare decisis, rule of law, precedent, attitudes or practices known as formalism and fundamentalism, the philosophical doctrine of legal positivism, and the quest for certainty in the law. These leviathans make the law a closed system and limit a judge’s choices, discretion, and ability to be creative. Judge Thomas knocks them out of the way one by one, together with “natural law” for good measure.

He advances an alternative concept of the law. It is a fluid and often political process. The law is what judges ultimately decide at any point in time. This process permits the rules to be continued, modified, or reversed. It, together with realism and pragmatism, constitutes the underpinning of the new methodology.

Realism means accepting that there is no transcendental, impersonal law to be discovered or declared. Pragmatism is the avoidance of absolute rules or principles. Rules must be constantly reevaluated pursuant to the principles of justice and relevancy. Laws must meet the needs of the commercial community to be relevant. The leitmotiv of the book is justice and relevance.

The reader should keep the following in mind: Thomas is a practicing judge in New Zealand, a country with a fairly homogeneous population of about four [*354] million, averaging thirty-three people per square mile; the service industries account for most of New Zealand’s employment and gross domestic product. The new methodology is recommended for all common law countries and both trial and appellate judges. The United States has fifty-one separate political jurisdictions. The reader should ask what impact, if any, this new methodology would have on the substantive law.

This book could have been entitled “Power to the Judges.” The new methodology aims to free judges from the tethers of precedents and stare decisis, or legal positivism. Judges must abandon their rule-based mentality and assume a more creative role in developing the law. Precedents and rules have their place – behind principles. Judges should shun particular rules and cases and seek out the general principle underlying those rules or cases. They then work from the general principle to the particular case in hand. When applied to a particular case “a recognized principle can provide a persuasive basis for a decision” (p.343).

Once the issue in a case has been clarified, the judge may begin the reasoning process. The judge must start with a “premise.” It may be a rule, a principle such as justice, a standard, or a community value. The initial premise must be rejected if it would lead to an injustice in the particular case or perpetuate a law that is contrary to contemporary community requirements.

The premise is subject to revision as the facts develop. The judge must balance interests, values, policies one against others guided by “the lodestars of justice and relevance.” Justice is not an abstract concept when applied to a concrete factual situation—particularly for judges. “Justice is incorrigibly context-specific” (p.370).

According to Judge Thomas, current methodology and the philosophical contention that the law is impersonal limits the judicial function to one of interpretation and further limits the judge’s ability to create new legal doctrines. “The notion that there is an impersonal law crumbles once it is accepted that there is no law hovering in the heavens waiting to be declared . . . judges constantly make and remake laws” (p.184). The new methodology would rehabilitate justice and relevancy as primary values permitting greater flexibility and creativity.

The law, he argues, is much more than a system of legal rules. Principles, values and policies should play a part in judicial decision making. In a “sufficiently homogenous society certain values develop automatically . . . and it is assumed that those values will be reflected in the law . . .” (p.282). The judge must translate these values into legal principles, the foundation of legal reasoning.

Thomas uncovers the precept of “non-exploitation” that underlies the entire spectrum of the common law. The law absolutely abhors exploitation. It will not permit one person to use his or her superior strength, power or dominance unfairly to take advantage of another. This precept is so entrenched in the [*355] common law that it is a mandate to judges.

Some precedents will reflect the precept and can be given effect under current methodology. Other precedents will not reflect the precept. The “progressive or creative judge” (p.363) may then use the precept as a guide as to how the law should be “developed.”

Though briefly hinted at earlier, it is not until the final three chapters that the author acknowledges that judicial methodology is “critically important in determining the substantive decisions” (p.xix) of judges. He notes that substantive law, along with the universal suffrage, a propertied middle class and the welfare state, permits the flourishing of capitalism by ameliorating its harsh and unconscionable excesses.

Contrary to Judge Thomas, I view American law as an open system. Traditional legal rules have been changing dramatically in response to changing conditions and policies since the 1930s. Our courts seldom look to precedents that pre-date the 1920s. American courts now cite foreign law in their decisions, and state judges often cite the law of a sister state. The law is so open that critics complain of “judicial activism.” Alexis de Tocqueville observed in 1840 that there is “almost no political question in the United States that does not sooner or later turn into a judicial question.”

Whether we view the law as an open or closed system is irrelevant because there is little that an individual judge could do under the new methodology that cannot be done today. Principles, for example, are now a part of the judicial decision-making mix. As long ago as 1889, in the case of RIGGS v. PALMER, New York’s highest court enunciated the principle that no person should profit from his own wrongdoing. This principle took precedence over the express language of the New York Statute of Wills that would have given a legacy to Palmer, a beneficiary under the will of his grandfather whom he, Palmer, murdered.

A precedent is a prior adjudged case. It may be distinguished from the case at hand, or overruled due to changed circumstances. Exceptions may be carved out of the precedent. Then too, the rule of the precedent may be so ambiguous as to permit the judicial creativity sought by Thomas.

The emphasis of the new methodology on constant reevaluation of the issues, principles, rules, and precedents may force American judges to become more intellectually engaged as the case proceeds rather than sitting back passively and choosing between column A and column B, as posited by the opposing attorneys. This could be a good thing.

This new methodology could change an open system into, at best, an open-ended system whose many parts act independently. The sources and direction of the substantive law would dramatically and exponentially increase and change. The ranking given to the protean term “justice” in the judicial decision-making process guarantees conflicting and ever-changing results. [*356] Aristotle, in POLITICS, observed that it is better for a state to have inferior laws for a long time than laws that constantly change even if they are good laws. (Remember the author encourages all judges to take charge, be creative and make law.)

At worst, the new methodology would replace a system with a disordered coterie of power hungry trial and appellate court judges determined to make law and history or utopia. “Of course, the administration of the law and legal process will vary at the hands of individual judges” (p.394). Thomas, however, expects the precept of non-exploitation to restrict “the scope for judicial diversion or distortion.” (p.394). Many would call this wishful thinking.

This methodology may change the public’s image of and respect for the judiciary and the law. The blindfolded Lady of Justice with the balanced scales in one hand denotes the law as objective, dispassionate, detached, logical, and as treating rich and poor alike; the public understands this as the meaning of “impersonal” law. But Thomas uses ‘impersonal’ to mean transcendental or metaphysical in order to trigger his contention that the law is what judges say it is.

Unfortunately, the new methodology shouts that there is no impersonal law and also says that the judicial function includes a political element. These contentions, together with frequent and dramatic changes in the substantive law occasioned by the new methodology, may cause the public to view the judiciary as it views politicians and legislators – with great cynicism. The public’s understanding of the meaning of impersonal may be but a goal, but one that is necessary to the smooth functioning of the judicial system.

Practically every society with an established system for the peaceful settlement of disputes projects the law as impersonal and majestic. These intangibles are symbolized in our society by judges’ wearing of black robes. In much of Europe the symbols are robes and wigs. In much of pre-colonial Africa, the symbols were masks.

Lawyers, legislators and business, especially big business, would in all probability oppose the new methodology. The doing away with the quest for certainty in the law combined with the reduction in value accorded precedents would render lawyers largely impotent when it comes to advising clients of their chances in court.

The legislative branches of our government will brook but so much encroachment into their territory. I doubt that the U.S. Senate Judiciary Committee would approve any judicial nominee espousing subject methodology.

The uncertainties that this methodology could produce in the substantive law would surely give domestic and foreign business interests great concern. Business prefers certainty in the law – especially when risking millions or billions of dollars in long term contractual commitments.

Others will oppose on the ground that the solutions are naïve. Thomas [*357] recommends the elimination of legal fictions. Would he eliminate the legal fiction of treating a corporation as a person? The worldwide outcry would be deafening.

As Judge Thomas is a fine critic, THE JUDICIAL PROCESS should be of value to students and scholars of philosophy and the social sciences and to others interested in the distinctions between “is” and “ought to be.” The really serious scholar may wish to also read THE CONCEPT OF LAW by H. L. A. Hart. Professor Hart is one of Judge Thomas’ targets. One may also wish to read some of Ronald Dworkin’s works (cited in the book) as he is mentioned more often (both critically and approvingly) than anyone else except Justice Cardozo.

REFERENCES:

Hart, H.L.A. 1961. THE CONCEPT OF LAW. Oxford: Oxford University Press.

CASE REFERENCE:

RIGGS v. PALMER 22 N.E. 188 (1889).

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