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

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