Skepticism in law is a school of jurisprudence that was a reaction against the idea of natural law, and a response to the formalism of legal positivists. Legal skepticism is sometimes known as legal realism.In the context of philosophy, some people prefer the word "skepticism" to "realism"' because "realism" is also used for the school of thought founded by Plato and his followers. The reason for this preference for the use of "skepticism" is not only that it is used in the writings of skeptical jurists, but also that it word is used in throughout the history of philosophy.
According to Richard Posner, "The skeptical vein in American thinking about law runs from Holmes to the legal realists to the critical legal studies movement, while behind Holmes stretches a European skeptical legal tradition that runs from Thrasymachus (in Plato's Republic) to Hobbes and Bentham and beyond".Posner, Richard A. "The Jurisprudence of Skepticism" Michigan Law Review, Vol. 86, No. 5 (Apr. 1988)
Origin
Skepticism (American English and Canadian English) or scepticism (British English and Australian English) is a philosophical approach that includes a scientific method and a rejection of unevidenced claims to certainty. Skepticism has been known in various degrees. Pyrrho was the first philosopher who developed it to a high degree. Greek Sophist were also skeptics. Protagoras was a famous Greek Sophist. Greek Sophists were also law teachers.
Writing about the courts of Athenian democracy, Bertrand Russell states: "In general, there were a large number of judges to hear each case. The plaintiff and defendant, or prosecutor and accused, appeared in person, not through professional lawyers. Naturally, success or failure depended largely on oratorical skill in appealing to popular prejudices. Although a man had to deliver his own speech, he could hire an expert to write a speech for him, or, as many preferred, he could pay for instruction in the arts required for success in the law courts. These arts the Sophists were supposed to teach".Russell, Bertrand. History of Western Philosophy, p. 92
Samuel Enoch Stumpf writes about Sophists, "It was their skepticism and relativism that made them suspect. No one would have criticized them for training lawyers, as they did, to be able to argue either side of a case".Stumpf, Samuel Enoch. Philosophy: History and Problems, p. 30. American legal skeptics are influenced by pragmatism of William James, John Dewey, and Charles Peirce.
Bertrand Russell declared that William James's doctrine is "an attempt to build a superstructure of belief upon a foundation of scepticism".Russell, Bertrand. History of Western Philosophy, pp. 94, 772.
Early history
Mickey Dias writes: "a preliminary warning is needed against the tendency to imagine that there is anything like a 'school' of American realists. A difficulty in the way of a coherent presentation of their views is that there are varying versions of realism as well as changes of front; positions formerly defended with zest have since been forgotten or abandoned.... Judge Jerome Frank (1889–1957), a leading exponent preferred the phrases "experimentalists" or "constructive skeptics". He repudiated the charge that "the realist school embraced fantastically inconsistent ideas" by pointing out that "actually no such school existed". The common bond is, in his words,Law and the Modern Mind (1949), Preface, pp. vii-viii. "skepticism as to some of the conventional legal theories, a skepticism stimulated by a zeal to reform, in the interests of justice, some court-house ways."Dias, Jurisprudence, 1976 With such zeal to reform, legal skeptics made a revolt against the formalism.
Lord Lloyd of Hamstead has described this revolt in a wider philosophical perspective as follows:
"In the nineteenth and at the beginning of the present century, laissez-faire was the dominant creed in America. This creed was associated, in the intellectual sphere, with a certain attachment to what has been called "formalism" in philosophy and the social sciences. This was marked by a reverence for the role of logic and mathematics and a priori reasoning as applied to philosophy, economics and jurisprudence, with but little urge to link these empirically to the facts of life. Yet empirical science and technology were increasing dominating American society and with this development arose and intellectual movement in favor of treating philosophy and the social sciences, and even logic itself, as empirical studies not rooted in abstract formalism. In America this movement was associated with such figures as William James and Dewey in philosophy and logic. Veblen in economics, Beard and Robinson in historical studies, and Mr. Justice Holmes in jurisprudence. This movement was especially hostile to the so-called British empirical school derived from Hume, and to which Jeremy Bentham, John Austin and John Stuart Mill adhered. For while it is true that these thinkers were positivist and anti-metaphysical, they were, for anti-formalists, not empirical enough, since they were associated with a priori reasoning not based on actual study of the facts, such as Mill's formal logic and his reliance on an abstract "economic man," Bentham's hedonic calculus of pleasures and pains, and the analytical approach to jurisprudence derived from Austin. They were particularly critical of the ahistorical approach of the English utilitarians.Lord Lloyd of Hampstead, Jurisprudence, 679.
The new movement in jurisprudence found philosophical support in pragmatism. The principal exponent of pragmatism, William James, wrote: "A pragmatist turns away from abstraction and insufficiencies, from verbal solutions, from bad a priori reasons, from fixed principles, closed systems and pretended absolutes and origins. He turns towards completeness and adequacy, towards facts, towards actions, towards powers.James, Pragmatism (1925), p. 51.
Justice Oliver Wendell Holmes Jr.
This skeptical approach impressed Justice Holmes, who laid the foundation of healthy and constructive skepticism in the law. Hughes writes: "Though another half century was to elapse before the appearance of Ogden and Richard's The Meaning of Meaning, exploration of meaning of meaning of law was Holmes's pioneer enterprise.Charles. Hughes, "Early Writing of Holmes, Jr.", in 44 Hughes further writes: "To me, Mr. Justice Holmes is a prophet of the law,Harvard Law Review (1930-31), at p. 718.
Oliver Wendell Holmes Jr. graduated from Harvard Law School in 1866 and opened a private law practice, but he devoted much of his energy to legal scholarship. From 1870 to 1873 he served as editor of the American Law Review and taught constitutional law at Harvard.
In 1881, Holmes published The Common Law, representing a new departure in legal philosophy. The opening sentence captures the pragmatic theme of that work and of Holmes's philosophy of law: "The life of the law has not been logic: it has been experience." As a Supreme Court justice, Holmes was known for the eloquence, pungency, and abundance of his dissenting opinions—so much so that he was called the "Great Dissenter." Holmes was appointed a justice in 1902 and served the Court for thirty years. At that time, the Court was declaring many state regulatory laws unconstitutional because the Court felt they did not conform to its concept of due process of law.
In a dissenting opinion in Lochner v. New York (1905),198 U.S. 45,76 (1905). Holmes declared that the law should develop along with society and that the 14th Amendment did not deny states a right to experiment by enacting social legislation. He also argued for judicial restraint, asserting that the Court should not interpret the Constitution according to its own social philosophy. Speaking for a unanimous Court in Schenck v. United States (1919), however, he stated that freedom of speech could be limited when it created a "clear and present danger". Francis Biddle writes: "He was convinced that one who administers constitutional law should multiply his skepticisms to avoid heading into vague words like liberty, and reading into law his private convictions or the prejudices of his class."Francis Biddle, Justice Holmes, Natural Law, and the Supreme Court (1960), p. 10. Biddle also writes that Holmes "refused to let his preferences (other men were apt to call them convictions) interfere with his judicial decisions.... Holmes's determination to keep his own views apart from his judicial decisions is shown by his famous remark in the Lochner case that "the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.... [A] constitution is not intended to embody a particular economic theory".
According to Holmes, "men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite.Francis Biddle, Justice Holmes, Natural Law and the Supreme Court, (1960), p. 49. "The common law is not a brooding omnipresence in the sky".Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (dissent). Law should be viewed "from the stance of the bad man.Holmes, "The Path of the Law", 10 Harvard Law Review (1897), p. 457. "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law". A judge must be aware of social facts. Only a judge or lawyer who is acquainted with the historical, social, and economic aspects of the law will be in a position to fulfill his functions properly.
In The Common Law, Holmes wrote: "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, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than 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.Holmes, The Common Law (1881).
In Lochner v. New York he observes, "General principles do not decide concrete cases."
Holmes, also insisted on the separation of 'ought' and 'is' which are obstacles in understanding the realities of the law. As an ethical skeptic, Holmes tells us that if you want to know the real law, and nothing else, you must consider it from the point of view of 'bad man' who cares only from material consequences of the courts' decisions, and not from the point of view of good man, who find his reasons for conduct "in the vaguer sanctions of his conscience. The law is full of phraseology drawn from morals, and talks about rights and duties, malice, intent, and negligence- and nothing is easier in legal reasoning than to take these words in their moral sense.Frances Biddle. Justice Holmes, Natural Law, and the Supreme Court. 40 332 p. 38. Holmes said: "I think our morally tinted words have caused a great deal of confused thinking. But Holmes is not unconcerned with moral question. He writes: "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law.
Jerome Frank