From: Douglas Brooker (firstname.lastname@example.org)
Date: Sun 15 Dec 2002 - 09:39:23 GMT
Ray Recchia wrote:
> At 06:06 PM 12/13/2002 +0000, Douglas Brooker wrote:
> >Ray Recchia wrote:
> > >
> > > Let me just add a bit: Legal citation is fundamentally different from
> > > scientific citation because of its adversarial nature. Scientists don't
> > > get paid to attack each other's work. They make progress when they can
> > > build on it. As a result they don't need to scrutinize every word as
> > closely.
> > >
> >Ray, a few comments on this second of your two posts.
> >In European civilian systems law is widely (but not universally)
> >considered a science. When I was in Germany earlier this year I was
> >called a scientist to my face, something that makes someone like myself,
> >raised in the common law tradition, uncomfortable. In the United States
> >(and Canada) Legal Realism more or less is the prevailing view of law
> >and calling a lawyer a scientist will provoke laughter.
> >In the above, you may be conflating the process of citation with the
> >purposes for which it is done. citation is the incorporation by
> >reference of another work to one's own. scientists and lawyers use
> >citation to bolster their arguments or refute those of an opponent
> >without having to set the whole other work out, on the basis that others
> >can either find it, or will know it. There is a small literature in
> >linguistics on citation, I recall an article by Malinowski on the
> >subject. There is also a body of scientific literature the purpose of
> >which is to disprove the claims others have made, in whole or in part.
> >You may also be conflating the process of a legal action with the
> >result. courts also use citation but issue authoritative judgements -
> >in both common and civil law systems. Recall Dworkin on the chain of
> >law? He compared it to a chain novel - each chapter written by a
> >separate author. This fits the description above that you attribute to
> The scientific process and legal process are very different in nature. A
> paper published in a journal should ideally describe a repeatable
> experiment or set of observations. If the information contained in the
> paper is inaccurate or incomplete then other scientists will not be able to
> repeat the experiment or observations. Accurate citation is of lesser
> importance if the same results can be achieved.
> By contrast, a judicial decision is not a testable result in any practical
> sense. Judical decisions are not descriptions of observations or
> experiments. They are legal acts which govern and direct future behavior.
> I suspect that Dworkin would agree with my analysis. His chain concept
> involves judges deliberately using differences in factual circumstances to
> modify the scope of a prior decision so that it aligns more closely with
> their own moral stance. It is not a misquote or mistake on their part but
> an intentional act of adaptation. It is gradual process based upon changes
> in morality, not a scientific procedure.
> Anyway, that's my take.
There are many different takes on what the process of law-making, or
law-stating is about. One of the most basic issues for theorists is
whether morality has anything to do with law at all. A legal text
states law, but it derives its authority from the fact that it is law,
not its moral legitimacy. A person can't normally justify disregarding
a law because it is not consistent with their morality, without exposing
themselves to the legal consequences. I say normally, because law goes
hand-in-hand with small "e" equity, which justifies the departure from a
legal text by invoking supraordinate principles of justice or fairness.
Equity complements law at the same time it subverts its authority, by
allowing exceptions not stated in law.
Your comments about Dworkin describe the point I was making, that the
'chain' of law-making means the meaning of prior texts cited as precedent, whether followed, distinguished, or overturned acquire their meaning from present-day interpretations, rather than a perpetual re-reading of the original as every new case arises.
One way in which European systems are different than common law is the
absence (supposedly) of common law-like doctrines of precedent or stare
decisis. The accepted account of the process of adjudication is: the
application of a legal rule to a fact situation. This is seen as an
equation, and emphasises (overly, as I see it) the role of rationality
in the process. The judgement is a logical consequence of the
application of a legal rule to a fact. This gives some credence to the
European view law is a science. But the question arises whether the
European view is just how they talk about it, or whether it is
empirically 'true'. The view that law was a science was popular in
common law until the American Legal Realists came onto the scene. Did
the reality change or just how we talk about it? If it was just how we
talk about, that should also have implications for how we view how we
talk about it.
On the other hand, science has in the past few decades seemed to have
become more politicised. Witness, the controversy, at least outside of
the US, over the Administration's 'science' regarding global warming.
In this view science becomes very much like law, consisting of contested
arguments that have political or economic consequences. I can accept
you are talking about an ideal of science, but the question then becomes
how closely this ideal corresponds to practice.
Looking at both European and common law systems, one has to explain the
differences. On one hand there are theoretical claims, that if we
believe them, are seamless, and on the other, practices that conflict
with theory. (for example, the absence of any reference to statutes in
your account, or that the typical model used to describe common law
processes is the appellate decision, which represents a tiny proportion
of situations involving the application of law, or how Dworkin has
written that a theory of law should 'fit' with practice, but his chain
of law omits all reference to the essential role played by adversarial
The only path open I can see is to examine underlying cultural and
political values and tensions. This has the benefit of offering a way
to understand differences between different legal systems. But,
acquiring some understanding this way, seems to have the knock-on effect
of requiring we accept that understandings about macro systems like law
are cultural values. And this explains, as you note, the process of
change as judges' apply their morality to instant cases.
This was distributed via the memetics list associated with the
Journal of Memetics - Evolutionary Models of Information Transmission
For information about the journal and the list (e.g. unsubscribing)
This archive was generated by hypermail 2.1.5 : Sun 15 Dec 2002 - 09:36:22 GMT