Gray's Realism

The school of realism shares one important feature with positivism. They are interested in the feature of effectiveness. In the law actually in effect vs. do we approve of it. We noticed it in positive legal theory's concern with legitimacy, but the realists actually turn this concern against the positivists. The target of this criticism is an idealized focus on rules of law. Realists contend that focus is unrealistic and blinds us to where the law really exists–in the courts and adjudication.

Positivists also insisted on being realistic, e.g., in recognizing the existence of legal systems of which we do not approve. Realists similarly notice that even where a stable regime has a code of well-recognized rules, those rules, by themselves, do not create duties or rights. Realists enjoyed pointing out that rules guaranteeing free speech, religion, and press were written as prominently in the Soviet and Chinese constitutions. That does not mean that the citizens of those states had such rights.  They had no prayer of persuading a judge to release them if Stalin arrested them for exercising these rights. You have a right only if you can get the right enforced in court.

Excessive concentration on written rules, they argued, is an idealistic oversimplification. The realists called the positivists “formalists.”  What they meant was that the positivists assumed that as soon as you have identified a rule of the law, the interesting legal questions are solved--the remainder is simply a question of formal logic. 

           All X is prohibited.

           This is X. 

           This is prohibited.  

This is elementary deduction from a rule to the case. In reality, they argued, it is between the rule and the individual case that all the interesting and hard problems are to be found. That is why judges disagree and rely so heavily on precedent and legal argument.

Where the original positivist “objective” standard of the law was the command of the sovereign, the realists say the test of law is the decision of the judges. In a (somewhat too facile) slogan" "The law is what the court says it is."  (In America, it was "the Supreme court.")  Thus they bring our attention back to our vexing but familiar problem of interpretation.

We have noticed before that various “concepts” of law all end up emphasizing some of the various legal actors' “points of view.”  The Natural law theory was relevant to legislators (deciding what laws to “make”) and citizens (considering conscientious objection). Positive law theory was better for social scientists (a value-neutral, external “scientific” way of identifying legal systems). The realist theory was most popular among lawyers advising clients (what they really want to know is whether the court will let them get away with this). Giving realistic advice is predicting what courts will ultimately decide. When you study The law, they might say, you are studying the psychology and sociology of judges as much as anything else. A lawyer's first duty is to know the judge's prejudices.

Gray insists on defining “the law” not “a law.”  The law, he says, is the rules courts lay down for the determination of legal rights and duties. Technically, he should say the law just is the concrete predictable pattern or practice of actually enforcing legal rights and duties. If it were a rule, then he would be as guilty of formalism as the positivisits. The rules themselves have the status of inputs in this determination, but do not fix any outcome prior to the judge's decision. This reflects Gray's greater sensitivity to “common law” than was shown in Austin’s analysis.

Kelsen and Hart make a place in their systems for the judge-made law insight in their catch-all reference to normative procedures. However, realists would argue that, as Austin illustrates, positive law analysis does not do justice to the rich complexity of the legal system. Realists focus on the ultimate outcome, the legal rights and duties. They regard the primary rules as mere intermediate variables. The rules may be cited in the process that creates rights and duties, but formal rules do not, by themselves, create duties.

A pivotal claim of realists is that rulers/legislators do not in fact understand the law. Another way to put it is that their understanding is not authoritative. Law, thus, cannot be purely a product of their decisions. Legislators in writing the rules do not settle the law—the patterns of judicial decisions are what do that. Judicial decisions, via interpretation of formal rules, are all important. They determine the actual legal content of rules.  Absent judicial decisions and actual enforcement, we can assign no content to the claim that something is against the law. Realists focus on concrete legal rights and duties, not rules.

Realism has another potential strength in dealing with laws that are ignored. Hong Kong under the British had many draconian "colonial" powers but the world considered HK free because the government, controlled by a traditionally free nation and parliament, never used them. Realists would deny it was against the law to have a gerbil just because some 1730 law against harboring “rodents” was still on the books and biology defined gerbil's as "rodents." Written rules do not determine what is the law. To be a realist is to say, whatever gets enforced is the law.  Is 50 kph or 65 the realistic speed limit in HK?  Buses, ambulances and police wagons go 60. Even in speed traps, the police (almost) never stop a driver going less than 65.

The problem for realism is that the otherwise sensible advice (A solicitor advising her client should try to predict what the courts will decide) is that it is useless for the Judge herself (or any critic of judges). It seems to entail that the courts cannot be wrong about what is the law. It does not give any helpful standards for judges to appeal to in making those decisions. So again in focusing on one point of view, it becomes nonsense from another.

Furthermore, the definition quickly becomes troublesome.  What are the “rules the court lays down?” Is it the principles the judge cites in her written opinion?  Or does it include unnoticed presuppositions of the decision. One problem with the former is that a frequently cited legal principle is that Obiter Dicta, the rationalization given by judges in their decisions, are not law. The decision (in a common law system) is a binding precedent, but the argument is not.[1] An alternative is that the rule is whatever rule actually justifies the court’s decisions.  I will say more about this later.

Law is what judges say is right is also not helpful to journalists, legal scholars and other critics. Anyone who wants to take an evaluative point of view toward the court is blocked by the implicit assumption the court cannot be wrong. (Might this be the view of pro-China legislators in Hong Kong?  The basic law means whatever the NPC would interpret it as meaning.  They can’t be wrong about the meaning so Patten must have been wrong in thinking the democratic reforms are consistent with the basic law.) The only alternative to saying they are cognitively infallible is to deny any real law exists until they make their actual formal decision. Gray bites the bullet and accepts this conclusion. Judges make law with each decision.

Gray brought the realists into mild disrepute by his explanation of the rule laid down by the courts.  He sometimes understood the “rules” as those that best allowed prediction of future decisions. This lead many realists in the direction of Marxist economic determinism,[2] sociological analysis (male, white, rich judges have certain prejudices) and the like.  Realism left the realm of philosophy (normative) of law for pure predictive science (descriptive). A decision can be influenced by what the judge had for breakfast. Does that make it a “rule of law?”

Gray targets the intuitive objectivism of our common-sense view that the judges rationally "discover" what the law is rather than inventing it. We want to think that in law, there is such a thing as “getting it right.” That requires that something is right before the judges’ decisions. Dworkin, for example, formulates what he calls the “one right answer thesis.” That is there is a right decision which judges and juries “ought to” reach in the cases they decide.  Gray accuses such theories of being old-fashioned nicht positivisches Recht (Natural Law).

Do judges discover or create the law?  Obviously, Gray says, they create it. Opponents don't want to admit this because it is considered unsavory. Realism, however, tells us that judges and only judges make law. Because they make it when the case is actually before them, they also make ex post facto law -- law that is created after the fact (of the alleged violation of law).

Here, as with Austin, we start to sense the normative implications of our definitions of law.  Some definitions make law the kinds of institution that we would clearly oppose. If it were true that judges made law ex-post facto, would we favor the rule of law at all?  Gray thinks we would because, quite simply, we need a way to resolve dispute and judge-made legal duties and rights are the only alternative. But his analysis makes judge-based law so arbitrary, we would be as rational to flip a coin.

Let’s leave Gray for a moment and return to the formal issue we mentioned above.  The crux for realism is "what rule should we focus on in interpreting his maxim?" There are these three possibilities.

       Predictive rule: This is helpful to lawyers and important to you in avoiding convic­tion. Prudentially we need to know this, but it is not the legal rule.

       Announced rule: This leads back to formalism and is internally inconsistent with "announced" legal principles (see footnote above).

       Inference to best explanation: Think of the law like science. Science works on what we call inference to the best explanation. What law/theory best explains all the observable facts. We can think of law in a parallel way. What principle best justifies all past legal decisions? Abiding by precedent = abiding by whatever principle(s) do this. Science and law share the trappings of objectivity and this allows us to make sense of objectivity in legal interpretation. Both fact and (legal) value are discovered, not invented.

There are two interesting difference between this view of legal interpretation and science. One is the focus on ‘justification’ v ‘explanation.’ The other is the “fact base” that our principles seek to make coherent. In the case of law, The set of “facts” (the historical precedents) is added to by each act of interpretation—so it grows in response to application of the method.  The principles behind the body of facts may thus change over time as the body of decisions becomes more coherent.  Truths about Law have a kind of dynamic evolution – but not a gradual “getting closer” to given facts. Law is the principles enshrined in the body of legal decisions – but the latter change every day. The changes do not necessarily follow correct legal principles but "realistic" ones. So the principles are in constant evolution.

We can also improve our understanding of the Realist theory by focusing on different senses of authority.  A person can be an authority in three senses: expert, performative and final appeal authority. Expert authority consists in knowing the subject best. A scholar at a law school may be more “expert” at the law than a judge, sitting on the bench. He may understand and theorize better, but his theories (even if right) cannot directly influence the development of law the way a judge’s decision can. 

A judge has performative authority. A performative is a form of words that does what it says. “I promise” is a famous performative.  Saying it is doing it. “I divorce thee” (said three times by the male) is a performative in some fundamentalist Islamic societies. Typical performatives are first person, present tense statements that rely on the speaker having an appropriate social status.  For example, “I declare you man and wife” is a performative in the mouth of a priest, judge or clerk in the right circumstances, but not in mine in this class.

A formal legal system gives this performative status to certain utterances or writings of judges.  “I find you guilty.” “We find this law violates the right of free speech.” The performative action is the result of a decision. What is the decision about?  It involves both legal and factual aspects. One may be (or not) factually guilty before the court's declara­tion and a legal analysis can be legally wrong before a court's finding.[3]  Final appeal authority is merely a performative authority that cannot be “reversed” by any other performative authority.

Now we can make sense of our “intuition” that there is something about which a judge to be right or wrong while realistically recognizing the impact judges actually have on the law.  This lies in the contrast between expert and performative authority. There is a knowable “truth” prior to the decision about which the judge may be right or wrong. One can know more or less about the theory and be better or worse at grasping those truths.

The best explanation of the law before this case comes from analysis of the prior decisions. We assume (on normative grounds and following another explicit principle of the law) that law has a kind of consistency, that we should conform to prior decisions (stare decisis). We should not apply ex post facto laws – including novel lines of interpretation. The interpretive question revolves around the criteria of sameness that we should use to ground the judgment that this case is like the one yesterday.

Hence, we can coherently say both that the court was wrong and that its decisions are the law. We accept, with Gray, that the court makes (ex post facto) law, but only when it makes a mistake. It made wrong law, but because of its performative mistake, something else is now the law. Thus, the court denies rights when it makes a mistake and the law is changed. When courts decide correctly, on the other hand, they do not "make" law. They find what was law before their decision.

[1] In any case, in Supreme Court cases, you frequently have many “opinions” written and, notoriously the minority or losing opinion may be more influential. Oliver Wendell Holmes is famous as the “Great Dissenter” because many of his dissenting opinions stated what eventually was accepted as the legal principle. The famous “clear and present danger” rule for determining what is “free speech” was first presented in a dissent.

[2] One scholar in the USA calculated we can predict the decision of the present Chief Justice of the Supreme court on three principles: 1) when the issue involves two economic interests, vote for the richer. 2) when the issue involves conflict between two levels of authority, vote with the higher. 3) when the issue involves an individual against the government, vote for the government.  Those principles successfully predict 95% of his decisions.  Are they “the law”?

[3] This is a way to understand “the law is what the courts say it is” in the analogy of “a person is innocent until proven guilty.” The “fact” of guilt is there before the trail and the “duty” of the jury is to correctly find the fact. However, the legal status of guilty and punishable depends on the jury making the determination. Only on their performative “finding” does that legal status apply. Similarly, the “fact” of what the law is exists prior to the judge’s decision.  His duty is to get it right. Still, his decision does performatively settle the matter (subject to appeal–see below).