Some Reflections on the Symposium: Judging, the Classical Legal Paradigm, and the Possible Contributions of Science

6 Pages Posted: 29 Jul 2005

See all articles by Christina E. Wells

Christina E. Wells

University of Missouri School of Law

Abstract

This brief essay, part of a larger symposium on judging, discusses the ongoing debate over constitutional review and the problem of judicial discretion. It attempts to move that debate forward by examining judicial review through the lens of modern science. Specifically, it discusses the continuing presence of the classical legal paradigm - i.e., the notion that judges are merely discoverers of rather than makers of the law - in discussions of the legitimacy of constitutional adjudication. Although everyone agrees that judges do not act as scientists as conceived by the classical legal paradigm, this essay explores a more modern notion of how science is practiced - one that accepts subjective influences on individual scientists but which also acknowledges that inter-subjective nature of scientific endeavors. With this more modern notion of science in hand, the essay concludes that there are potential parallels between modern scientific practices and the practices of judging that may provide judicial review with something akin to the objectivity that so many people seek from it.

Keywords: Judging, Judicial Review, Formalism, Legal Realism, Philosophy of Science, Jurisprudence

JEL Classification: B30, K10, K19, K30, K40

Suggested Citation

Wells, Christina E., Some Reflections on the Symposium: Judging, the Classical Legal Paradigm, and the Possible Contributions of Science. Missouri Law Review, Vol. 70, 2005. Available at SSRN: https://ssrn.com/abstract=762288

Christina E. Wells (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

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