In our previous post we acknowledged the main problem with Oliver Wendell Holmes’s prediction theory of law (PTL): its inability to explain how judges actually go about deciding cases–or in Hartian terms, its inability to explain the law from an internal point of view. That said, my initial reply to this critique is, so what? Yes, there is no denying the prediction theory’s limitation, but if what we want to know is how judges decide cases–i.e. if what we want to know is what the law is from an internal point of view–, then the other main theories of law do not fare much better, whether it be the legal realist’s “judicial hunch” theory, H.L.A. Hart’s legal positivist or “mental construct” theory, Ronald Dworkin’s “integrity” theory, or Richard Posner’s “pragmatist” (i.e. consequentialist) theory of judging. To see why, let’s take a look at each one of these competing theories of law:
- Judicial hunches. The judicial hunch theory of law is that judges decide cases based on their moral intuitions, or in the eloquent words of one realist judge, “the vital, motivating impulse for [a] decision is an intuitive sense of what is right or wrong for that cause.” (See Joseph C. Hutcheson, Jr., “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” Cornell Law Quarterly, Vol. 14 (1929), p. 285, available here, quoted in Brian Leiter, “Toward a Naturalized Jurisprudence,” Texas Law Review, Vol. 76 (1997), p. 276, available here.) This description of judging might be true as an empirical matter, but instead of solving the demarcation problem in law, this approach openly conflates law with morality.
- Hart’s legal positivism. H.L.A. Hart attempts to solve the demarcation problem in law by emphasizing convergence or regularity of judicial behavior. According to Hart, for a judicial decision to be a legally valid one, it is not enough for the decision to be based on the judge’s moral intuitions about right and wrong; the decision must also conform to what most judges in the legal system would do or are doing. Notice, however, that Hart’s theory does not remove the subjective or moral aspect of judging, so it is still open to the same objection as the hunch theory is: it still conflates law with morality.
- Dworkin’s Hercules. We need not exert much effort to dispatch Ronald Dworkin’s integrity theory of judging, for the main problem with his elaborate theory is that it does not even pretend to be descriptive. Dworkin may provide an attractive normative theory of what judges ought to do, but his integrity theory comes nowhere close to describing what judges actually do. Next!
- Posner’s pragmatist judge. Last but not least is Richard Posner’s legal-realist-inspired pragmatic theory of judging. Although I am a huge fan of Posner’s work, there are two big problems with Posner’s theory of judging. One problem is definitional: the precise meaning of “pragmatism” is hard to pin down. The other problem is the “conflational” one that all theories of judging seem to suffer from. It turns out that Posnerian pragmatism is just a fancy form of the hunch theory–judicial hunches in window dressing, so to speak. Pragmatism still conflates law with morality; it just substitutes a traditional Kantian view morality with a consequentialist view.
Given that all these main theories of law have a tough time describing what judges actually do without resorting to mental constructs or moral intuitions or other normative values (e.g. integrity, consequences), the prediction theory’s weakness on this ground should not come as shocking news to anyone. But why do I prefer Holmes’s prediction theory to these other theories of law. I will explain why in my next post.