Ennis McBride has posted Lennie Hoffmann and the Ratio of Death: Decoding the Violence Hidden in Law’s Language on SSRN. Here is the abstract:
The law accords trial judges’ findings of fact a reverential status—appellate judges will not interfere with them even if concluding differently on the same evidence. Judges use Latin in expressing this reverence, adding an appearance of ancient authenticity, the phrase “ratio decidendi” figuring prominently because declarations of law rest upon findings of fact. Hume and Hart both recognised legal language’s “alchemy” but appealed to its necessity to distinguish it from superstition. More recently, Lord Hoffmann utilized Renan and Weber quotations in his Opinions to justify using violence to sustain fact-finding’s status. I argue that Hume, Hart and Hoffmann’s narratives paint an overly-simplified picture of a more nuanced reality. I explore the linguistic and forensic origins of the phrase “ratio decidendi”, from Ancient Rome to 17th Century Edinburgh and I show for the first time that Hoffmann misquoted Renan and misunderstood in context the passages he quoted from him and Weber. With reference to the early Legal Realists, I then argue that the justification for fact-finding’s status relies on superstition rather than science. Consequently, I argue there has been a coded agenda running from Roman Law to the present in which magical use of language obscures the true nature of the mutual dance in which judges and jurists engage. I conclude that Cover and Nietzsche’s portrayals of law as a killing field are more realistic than Hart’s or Hume’s.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum