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Law- What is and What ought to be?

In the ideological and legal style of thought, it is possible to make normative inferences from statements of fact. Such inferences are made through concepts in which descriptions and values are inextricably fused. In the legal style, it is possible to move from statements of facts to normative conclusions without invoking values along the way.

This analysis of legal style is useful in the scrutiny of certain survey data on civil litigation before the federal district courts. In the scientific style of thought, there is a sharp distinction between cognitive statements and statements of values or norms, and hence, it is not possible to infer what ought to be from looking at what is.

Therefore, this invokes the need to think and talk in modes in which there are no unbridgeable gaps between cognitive and noncognitive statements and in which links between these different types of statements are possible. This article describes the formal characteristics of legal style, as it exists in contemporary society, and makes it possible to move from statements of fact to normative conclusions.

Many jurists and philosophers of law who differ among themselves in other respects agree in defining law, or legal thinking, in terms of rules. Shklar defines legalism as the ethical attitude that holds moral conduct to be a matter of rule-following, and moral relationships to consist of duties and rights determined by rules[1]. Hart contends that the law is the union of primary and secondary rules, while it does not define the whole of a legal system, is at the center of a legal system[2].

Fuller writes:
In one aspect our whole legal system represents a complex of rules designed to rescue man from the blind play of chance and to put him safely on the road to purposeful and creative activity[3].

However, there are few exceptions to rules of law and the emphasis seems unduly one-sided. The law consists not only of rules but also of purely classificatory categories such as �spouse�, �alien�, �contract�, �juvenile�, and hundreds of others.

These concepts are among the terms which the rules include but they are not rules themselves and the meaning of such terms is formally independent of the rules in which they are embedded. For example, �spouse� or �marriage� for purpose of inheritance law may mean something quite different from �spouse� for purposes of tax law, and both may differ from �spouse� for purposes of immigration.

These purely classificatory categories, as distinct from rules of law, seem worthy of attention in their own right. In legal reasoning, they are often the link between cognitive statements made in extralegal language and the application of rules of law to specific cases or events. They make it possible in the logic of the law to move from cognitive judgments to normative implications without invoking values and helps in getting the perspectives of litigating lawyers.

To see the place of classificatory categories in legal thinking, consider their place in a plaintiff�s suit against a defendant. The first ingredient in a suit at law is �the facts� of a case which means something happened, some events took place which led to a dispute, which resulted in a suit. The second ingredient is the legal categories under which those facts may be subsumed.

The third category is the rules of law in which the legal categories are embedded. The fourth and the last ingredient is a conclusion by a court about the disposition of the suit in question. In simplified form, the logical structure of a plaintiff�s case against a defendant consists of a chain of arguments that includes at least these four steps.

The Legal Style of Thought
Legally relevant facts are those which affect the classification of the events in question under one or more legal concepts. Courts and litigating lawyers have to find out what happened in a case. However, factual assertions in ordinary English are only the first step in the chain of arguments.

The second step is the classification of the facts under legal categories. At this point, lawyers and judges use a vocabulary that is unique to the law and use conceptual terms such as offer, acceptance, consideration, negligence, agents, etc. or they use words in ordinary language, such as wife, partner, employee, that have become legal concepts and have their technical meanings in the law. There are questions about the facts of the case.

But they are not purely descriptive questions. They have normative import. A person who knows no law cannot accurately answer them and they cannot be answered in ordinary English or in ways that have no consequence for the proper legal outcome of the case. Now, to apply a rule to a specific case or to draw normative conclusions from a cognitive statement, is not simply to say that a rule applies or that the events are covered by a rule.

There intervenes, in the legal style of thought, the cognitive categories of the law which defines the facts in legal terms and in terms that are included in the language of the rules.

The one-sided emphasis on systems of law as systems of rules may lead students of legal thinking to slur over this crucial, intervening step, and therefore to miss a distinctive characteristic of legal, as distinguished from ideological thinking. It is necessary to distinguish clearly between classifying particular cases as instances of general terms and bringing particular situations under general rules.

The general terms are not rules in themselves. They are cognitive categories that, in turn, are embedded in rules, but whose meaning is independent of the rules in which they are embedded. Only after the non-normative classification has taken place, bringing particular situations under general rules come about. This way of stating the matter makes it possible to identify more precisely than would otherwise be possible the nature of the legal issues in the vast majority of the suits in which there are any legal issues at all and this formulation is fruitful for empirical research on the legal processes.

Lawyers and their practices as determinants of agreement or disagreement on the law
Personal injury cases and commercial suits differ not only in how they proceed through the courts but also in the types of lawyers who typically handle them. For example, lawyers in commercial cases are more likely than lawyers in personal inquiry cases to be members of law firms. On the plaintiff�s side, at least, lawyers in commercial cases are more likely to belong to relatively large firms.

Membership in firms is associated with graduation from the higher-quality law schools and both plaintiff�s and defendant�s lawyers in commercial cases tend to have been in practice for a somewhat longer time than their counterparts in personal injury suits. Further, lawyers in personal injury suits tend to be more specialized in a variety of respects than lawyers in most types of commercial suits, and lawyers in commercial suits tend to spend more time on a case than lawyers in personal inquiry cases. The data on this point is in line with the common knowledge of the legal profession that personal inquiry litigation tends to be more perfunctory than commercial litigation.

These differences between the attorneys who handle different types of suits have consequences for the frequency of disagreement over the law that governs a suit. The characteristics of attorneys, or of their practices, which incline them to agree with their adversary�s views of the law are more frequent among lawyers in personal injury cases than they are among lawyers in commercial suits.

While looking only at cases of a single type, some lawyers are more able than others to find or to create more points of disagreement. The logical structure of a case and the place of legal precedent or of established doctrine in that logical structure suggest some reasons for these differences among lawyers. The lawyers subsume the facts of a case, as they construe them or chose to present them under legal concepts.

They invoke rules of law to conclude that the facts, thus conceptualized, point to a judgment for the people. However, in ordinary civil litigation, lawyers do not usually slice the law so finely. If they have a prima facie case, if at first glance the facts and the law seem to point their way, there is no reason why they should. If the facts seem to fall under established concepts embodied in received rules of law that would indicate a recovery for the plaintiff, they can let it go at that.

Also, the less experienced lawyers are more likely to agree with the other side�s view of the law. There is an experience that makes for stereotyped responses to facts that seem to fit under the received legal concept and it provides variety that breaks down stereotyped responses.

In the legal style of thought, facts move to their normative implications without invoking any value concepts. The values which legislators, judges, and litigants hold may contribute to the choice of the desired outcome. Values may have an impact upon the legislative drafting or on the judicial formulation of rules. Once the rules are given, it is possible to proceed from the statement of facts to their normative implications without invoking values as distinct from norms.

There is no reason to assume that scientific styles are somehow more legitimate or valid for all purposes than other styles. The ideological form of inquiry may subsume both science and the law. They subsume law because there can be neither legal justification nor legal attacks upon the ultimate �rule of recognition� in a legal system. Some particular rules of law may be attacked or defended as inconsistent or consistent with the supreme law of the land but the supreme law itself has no legal foundation. It can be attacked or defended ideologically but not legally.

  1. Shklar 1964, p.1.
  2. Hart 1961, p.96.
  3. Fuller 1964, p.9.

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