The Legal Culture of Decision-Making

What is commonly accepted as the skills of practical reason in the acknowledged methods of thought and the distinctive grammar of the common law legal system are all part of the legal culture of decision­making in which lawyers, legislatures and courts operate.^[131] Wilson Huhn identifies five types of legal argument accepted by the legal culture: Text, Intent, Precedent, Tradition, and Policy.^[132] He says that these arguments operate like �rules of recognition.’ These types of legal arguments function like �rules of recognition’ as they �tell us what is and what is not a valid legal argument.

The importance of the method of legal argument is that the method employed and the manner in which it is employed determines to a large measure the decision reached. The frequency of the reliance on one source rather than another also demarcates one legal speaker from another, one legal culture from another and, ultimately, the historical evolution of a legal system. In other words, it is functionally related, as is the suggestion of this chapter, to whether one can speak of one’s legal system as one’s own. It is from this point of view that we can talk about CaribbeanZWest Indian jurisprudence, not in the purely existential sense used by Dorcas White - �West Indian law may be bad law... but it is still West Indian law,’^[134] - but in the sense spoken about by, for example, Professor Rose-Marie Antoine, as an �indigenous jurisprudence’ one that is �unique,’ in which courts/judges do not �surrender their judicial sovereignty to English courts’ and which is more reflective of �West Indian reality.’^[135]

A.

Huhn begins by positing that the five types of legal argument are rules of evidence for determining what the law is. He compares legal arguments to determine what the disputed law is to witnesses and exhibits that are produced to prove a disputed question of fact at a trial. The facts which may be presented and their manner are controlled by rules of evidence, while the accepted mode of argumentation is regulated by the legal culture.^[136] A textual argument considers only the constitution, statute or other legal document that is being interpreted. Intent focuses on the intent of the people who wrote the text.^[137] Huhn says that �Evidence of intent may be drawn from the text of the law itself, from previous versions of the text, from its drafting history, from official comments, or from contemporary commentary.’^[138] Precedent is the statement of judges in formal legal opinions.^[139] Tradition involves evidence of the people’s historical beliefs and behaviour.^[140] Policy is somewhat more amorphous than the others and involves judicial notice of any fact the court finds relevant to determine the question of law. A policy argument is therefore a value argument. Sullivan explains in relation to statutory interpretation:

In determining the meaning of a provision in relation to particular facts, courts inevitably engage in policy analysis. That is, they take into account extratextual values or preferences that tend to favour one outcome over another. Although this aspect of interpretation is often played down by the courts, it is an essential and appropriate part of the interpretative process.

There are many ways in which extratexual values and preferences are introduced into interpretation. They form part of the basis for inferring meaning and purpose of legislation in textual and purposive analysis and for distinguishing good from bad consequences in consequential analysis.

Although policy analysis involves an appeal to values and preferences that are external to the text, it is nonetheless a legitimate part of statutory interpretation because these values and preferences make up the legal culture in which legislatures and courts both operate.^[141]

B. American Legal Realism

In the common law world, the United States stands out as the most reflective and self-conscious regarding the theories of legal reasoning. This is rooted in its revolutionary constitution based on Enlightenment philosophy and liberalism. The development of university-based law schools with full-time faculties in the late nineteenth century turned philosophical exploration of what law means into discourses on theories of judicial decision-making. Writers agree that the beginning of this discourse was with Christopher Columbus Langdell who became Dean of Harvard Law School in 1870. Langdell is attributed the role of father of �legal formalism’ which, fashioning itself from features of liberalism and utilitarianism of the earlier era, envisioned a limited role for law in governance. Langdell proposed that law is a science, like any other science and that the data of that science are judicial decisions and the law library, the laboratory. He introduced what came to be known as the �case-based method’ of studying law based on the premise that the lawyer could discover the laws of society by studying cases.^[142] The basic notion was that the judge was a mere mechanical applicator of rules without discretion, which could be found in legislation and previous cases. Thus text and precedent were the pre-eminent theories of decision-making.

Formalism was challenged by legal realism which disputed that decision-making was essentially based on either science or logic. This was part of a growing body of philosophy that viewed life and society as more susceptible to human weakness than formalism allowed and that it was out of step with reality. Kenneth Vandevelde says that �The problem with the formalist vision of society was that it denied the relevance of social hierarchy.’^[143] Harvard Law School professor and subsequently Associate Justice of the Supreme Court, Oliver Wendell Holmes Jr, led the legal realism school of thought. His basic idea was that law finds its reality in historical values and circumstances. He famously said that

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.^[144]

Roscoe Pound, Dean of Harvard Law School, also added the voice against formalism with his sociological jurisprudence and his principle of judges being social engineers whose decision is arrived at through weighing of policy interests. �Realists were more likely to evaluate judicial decisions according to their actual effect on society, rather than according to their consistency with prior cases or abstract rules.'^[145] Towards the end of the twentieth century, others joined the debate: there was the Chicago School with its somewhat utilitarian conception of law and economics; critical legal studies which emphasized that a court deciding a case must choose from opposing values but avoiding extremes, and the rights theory of John Rawls and Ronald Dworkin arguing from a set of fundamental rights divined through intuition and deduction as a basis for decision­making that proclaims the dignity and worth of the person.

The outcome of these discourses in the halls of legal education, searching for a philosophical structure and approach to law, is the American law student well-rooted in a critical sense of legal self. The product was practitioners, judges and lawmakers whose response to their social, economic and political environment in relation to law was always critical and evaluative which could hardly confine itself, despite its inherited colonial common law origins, to any one theory of adjudication. Legal Methods, in addition to Jurisprudence, became a critical subject of study for law students, in addition to requiring pursuit of a first degree. American judges are pushed to discuss the real reason for their decisions and take into consideration how law affects society.^[146]

4.