Legal Theory?
Kenney Hegland has posted If Stephen King Discovers Cujo, Can Judges Discover Law? (forthcoming in the Legal Studies Forum) on SSRN. Here is a taste:
- If the law is discovered, relativism vanishes: law, and our commitment to process (the Constitution, majority rule, rationality, and articulation), rest on bedrock, not whim. However, the discovery view tends toward intolerance (“I’m sure I’m right”), tends toward abstraction (“Who cares what is happening on the street when we know what should be happening?”), and tends toward rigidity (“We got this right the first time”). The view that judges invent or create law solves these problems: it promotes tolerance, practical, non-theoretical, problem-solving, and, as a result, is quite flexible in dealing with new problems.
And here is a bit more:
- If we believed that things exist out there, our world would look different. Obviously it did for those judges who thought they were discovering the law: these folks may have been wrong, but they weren’t idiots What we would see would be a world that supports our view. Consensus would jump out and judicial disagreements would no longer be seen as proving “law doesn’t exist, out there,” but rather would be viewed as data in need of an explanation: “Given that judges discover the law, how can they discover different things?” Did someone do a clumsy job? A half-hearted job? Are we on the right track, not there yet, but getting there? When two scientists come to different conclusions, “Dinosaurs are related to lizards,” “No, to birds,” we don’t throw up our hands and give up on science and say that there is no truth about dinosaurs, only points of view. No, we get excited and want to do more science. Who is right? What explains the error?
No comment.