The Quest For Real Certainty

The Quest for Real Certainty: A Study on Llewellyn's Legal RealismLlewellyn points out that, on the one hand, the paper rule will give rise to some confusions. On the other hand the doctrine of stare decisis is two-faced. On the basis of these judgments, he reveals the possibility that rule diverges from behavior. The argument is that, the insight that a discrepancy exists between rule and behavior is a premise that Karl Llewellyn criticizes legal formalism, and a keystone to understand Llewellyn's rule skepticism and behavior-centered approach. The reason why does Llewellyn transform the focus of law from rule to behavior is that he desires to pursue real certainty. In addition, there is a definite value orientation in this quest for real certainty. The reason why he criticizes rule-centered legal formalism is that the formalists long for illusory certainty. The cause that he transforms the focus of law from rule to behavior is that if we want to achieve more real certainty, we must observe and inquiry the behavior. As far as that goes, firstly, the revolt against legal formalism is the theoretical preparation of Llewellyn's Legal Realism. Secondly, the construction about the transformation from rule to behavior constitutes the theoretical kernel or ontology of Llewellyn's legal theory. Thirdly, the way to real certainty is the methodology of Llewellyn's legal theory. And finally, the social and political concerns are the axiology of Llewellyn's legal theory. Thus, the whole dissertation consists of six chapters.Chapter 1 is the introduction of the dissertation, which includes the selection and significance of the subject, the previous studies and the approach of the discussion and the structure of this dissertation. This dissertation attempts to clarify the complex logic of Llewellyn's legal realism firstly. After that, it inquiries its contributions and limits—theoretical and practical—from an outside viewpoint.Chapter 2 discusses the theoretical preparation of Llewellyn, which is the criticism on legal formalism. According to legal formalism, the only force at work in the development of the law is logic, and the logical method and form flatter that longing for certainty and for repose which is in every human mind. Such views are conceptualism and rule-centered which ignore the two faces of stare decisis and the substantive reasons of judicial decision in Llewellyn's opinion. Consequently, the superficial clarity and certainty which legal formalism offers produce confusion and uncertainty in reality. At the meantime, Llewellyn's revolt against legal formalism is a moderate skepticism which adheres to"a balanced realism", in which there is not only a skeptical aspect, but also a rule-bound aspect. At this level, we can call Llewellyn's legal realism"constructive doctrinal realism". Insteading of objecting to the fundamental appeal of legal formalism, which is certainty, he aims at a real certainty.Chapter 3 discusses the ontology of Llewellyn's legal theory, which is behavior-centered approach to law and its fundamental appeal. The end-means framework is the foundation of Llewellyn's legal realism. He regards law as a means to social ends. For the fundamental appeal to real certainty, the rule and behavior which are constituents of law are only means, nonetheless, the rule-centered approach is not a valid means. As a result, Llewellyn's behavior-centered approach to law consists of rule and behavior which are communicated by institution. In his view, this behavior-centered approach to law is a sound road to deeper, clearer and more effective ways of guidance and truer certainty. This true, thus real, certainty is composed of two meanings: One is the reckonability of the decision result, the other is the congruence between the decision and social customs.Chapter 4 discusses the methodology of Llewellyn's legal theory, which is the scheme to approach real certainty in theory and practice. When it comes to the question about certainty in legal theory, Llewellyn not only resorts to social science method so as to create a realistic experiential legal science which temporarily divorce Is from Ought, but also applies the institutional approach of social science in legal theory, which analyzes the steadying factors in deciding appeals. When it comes to real certainty in judicial practice, Llewellyn recommends the legal crafts tradition which is composed of juristic method, grand style and situation-sense. Firstly, juristic method which generally describes the legal crafts tradition is related to law-jobs. Secondly, grand style is a macroscopic generalization about the legal crafts tradition in common law. Finally, situation-sense is the application of legal crafts in concrete decision, which constitutes the core of the legal crafts tradition and the key to real certainty.Chapter 5 discusses the axiology of Llewellyn's legal theory, which is the social and political concern that real certainty aims to. First of all, this chapter places Llewellyn in the historical context from the Progressive movement to the New Deal. To be specific, this chapter inspects Llewellyn's real political concern or appeal through observing his participation in Sacco-Vanzetti case. On the one hand, Llewellyn criticizes and resists to laissez faire, attempts to improve the legal service that the low-income people enjoy, and declares that the pedagogic objective of legal realism is to supply excellent lawyers for the New Deal. On the other hand, Llewellyn fundamentally investigates the reformation and improvement of judicial system for the purpose that it can serve to the political ideal of the day. Second of all, by revealing the dual quest for order and justice of Llewellyn, this chapter sees through his social concern, that is a ideal society in which order is bound to concord with justice.Chapter 6 is the temporary conclusion of the dissertation, which assesses the contributions and limits of Llewellyn's legal theory. This chapter examines Llewellyn's legal theory in practice and theory. In the first place, this chapter analyzes the legal practice of Llewellyn and his recommendation on legal crafts for judicial practice. The argument is that, the clearity, openness and reasonableness of ratio decidendi is one of practical contributions of Llewellyn's legal realism. In the second place, this chapter inspects some theoretical controversies around Llewellyn's legal realism, which include ethical relativism and misunderstanding of the nature of the law and the legal science. Through such inspecting, this chapter puts forward two further questions. Firstly, is certainty a myth? Secondly, how do we judge the congruence between the decision and social customs? Especially, this chapter analyzes Llewellyn's assertion that the congruence between the decision and social customs can satisfy the social public's sense of certainty. The dissertation points out that there is a Law of Large Numbers. It also reveals its theoretical reference to the discussion on the relationship of judicial decision to public opinion, that is, we should treat public opinion carefully.