This brings me last to the legalist theory of judging. Battered though it has been by legal realists and pragmatists, "crits" (that is, members of the Critical Legal Studies movement), political scientists, economic analysts of law, and other skeptics, it remains the judiciary's "official" theory of judicial behavior. It is proclaimed most emphatically by Justices of the Supreme Court, since the Court is in fact a political court, especially in regard to constitutional law, and therefore especially in need of protective coloration.
Legalism, considered as a positive theory of judicial behavior (it is more commonly a normative theory), hypothesizes that judicial decisions are determined by "the law," conceived of as a body of preexisting rules found stated in canonical legal materials, such as constitutional and statutory texts and previous decisions of the same or a higher court, or derivable from those materials by logical operations. The treatment decisions of physicians are determined (most of them anyway) by the physicians' understanding of the structure of the physical world, and the aspiration of the legalist is that a judicial decision be determined by a body of rules constituting "the law" rather than by factors that are personal to judges, in the sense of varying among them, such as ideology, personality, and personal background. The ideal legalist decision is the product of a syllogism in which a rule of law supplies the major premise, the facts of the case supply the minor one, and the decision is the conclusion. The rule might have to be extracted from a statute or a constitutional provision, but the legalist model comes complete with a set of rules of interpretation (the "canons of construction"), so that interpretation too becomes a rule-bound activity, purging judicial discretion.
The legalist slogan is "the rule of law." But this, as we shall see in chapter 3, is an ambiguous term. Better (though still somewhat ambiguous, as we shall also see there) is a "government of laws not men." Objectivity, as distinguished from neutrality or impartiality, implies observer independence. If you ask someone what is 2 + 2, you will get the same answer whether he is a Democrat or a Republican, a theosophist, a libertarian, a Holocaust denier, or a cannibal. And if legal questions are similarly susceptible to being answered by methods of exact inquiry, then it does not matter how different the "men" who administer the laws are, and it is really the "laws" that govern.
Legalism treats law as an autonomous discipline, a "limited domain." Since the rules are given and have only to be applied, requiring only (besides fact-finding) reading legal materials and performing logical operations, the legalist judge is uninterested professionally in the social sciences, philosophy, or any other possible sources of guidance for making policy judgments, because he is not engaged, or at least he thinks he is not engaged, in making such judgments.
(Richard A. Posner, How Judges Think [Cambridge and London: Harvard University Press, 2008], 41-2 [footnotes omitted])
Note from KBJ: Judge Posner is a brilliant man, but this book, which I just finished reading, is deeply puzzling. The title is "How Judges Think." Who, other than a social scientist or a curious layperson, cares how judges think? What interests me, as a philosopher, is how they should think. In other words, I'm interested in normative adjudication theory, not positive adjudication theory. Imagine a book about how baseball umpires make decisions. It might turn out that umpireal decisions are influenced by such things as childhood loyalties. Umpires who grew up as fans of the Boston Red Sox, for example, might be biased in favor of the Red Sox and against longtime rivals of the Red Sox such as the New York Yankees. None of this has anything to do with how umpires should make decisions. Umpires, we would say, must resist the temptation to make decisions based on extraneous considerations. Umpires who allow such considerations to come into play are bad umpires and should be criticized as such. If they persist in basing their decisions on extraneous considerations, they will have to be removed from their position. They will have shown that they are unfit for their role.
Suppose it turns out that judging is, in Judge Posner's words, "political." What he must show, if this is to be of any interest to philosophers, is that political judging is inescapable. His argument must go as follows:
1. It is not the case that judges can be apolitical.
2. "Ought" implies "can."
Therefore,
3. It is not the case that judges ought to be apolitical.
This is a valid argument, and the second premise is true. But the first premise is false, or at least debatable. I'm what Judge Posner calls a legalist. Nothing in his book convinces me that the first premise of his argument is true. And even if it is true, it doesn't follow that Judge Posner's own normative adjudication theory—pragmatism—is true. There are many other possibilities.
Keith Burgess-Jackson, J.D., Ph.D. 