5 Pages Posted: 14 Nov 2011
Date Written: November 14, 2011
This paper is not fashionable. In fact, it's unfashionable. And being unfashionable in legal-philosophy terms is quite some feat, I should think. Indeed, if this paper even mustered up the popularity or social cachet to get invited to a party, it is likely that it would arrive early and confine itself to hovering around the punch-bowl for the duration, half-attempting to "bop" to whatever ill-advised late 90's song it took to liking (probably something by the Venga Boys).
This paper attempts to answer, in part, the following question: What can jurisprudence learn from the empirical social sciences? I say it attempts to answer this "in part" because it does not answer this question in any complete or comprehensive fashion (nor in any unfashionable yet comprehensive way). It focuses on a proposal made by Professor Brian Leiter. One which forms part of his “philosophical reconstruction of American Legal Realism”. Leiter seeks to adumbrate a “descriptive theory about the nature of judicial decision...according to which judicial decisions fall into (sociologically) determined patterns, in which...judges reach results based on a (generally shared) response to the underlying facts of the case, which...they then rationalise after-the-fact with appropriate legal rules and reasons.” Leiter makes a practical suggestion as to how this theory which be put into practice. To do this he draws on the "Attitudinal Model" of judicial decision making. This Model was first posited by Spaeth and Segal who argued that the judicial decisions of the US Supreme Court are best explained in terms of the facts of the case coupled with the “ideological attitudes and values of the justices.” Leiter, subject to some ambiguities, argues for this model through suggesting that we should adopt the account of law that would make “current social-scientific theory of adjudication (namely, the Attitudinal Model)...[both] true and explanatory." This paper sees problems with Leiter's approach. It also suggests that these problems extend to other similar accounts which are situated in the same theoretical frameworks.
Keywords: Brian Leiter, Julie Dickson, Raz, Adjudication, Legal Theory, Segal, Spaeth, Judiciary, Supreme Court, Pragmatism, Behaviorism, Naturalism, Attitudinal Model, Quine, Naturalizing Jurisprudence, Leslie Green
Suggested Citation: Suggested Citation
By Roger Shiner