Realism, Pragmatism and the Appellate Judge
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb00912.x |
| Author | Roger Cotterrell |
| Published date | 01 July 1991 |
| Date | 01 July 1991 |
REVIEW ARTICLE
Realism, Pragmatism and the Appellate Judge
Roger Cotterrell*
Kd
N.
Llewellyn,
The
Case Law System in America.
Translated by Michael
Ansaldi. Edited by Paul Gewirtz. Chicago: University of Chicago Press,
1989,
xxviii
+
127
pp. Hardback
f19.95.
Richard
A.
Posner,
Cardozo: A Study in Reputation,
Chicago: IJniversity of
Chicago
Press,
1990,
xii
+
156
pp. Hardback f15.25.
I
In
common law systems today, the nature of the appellate judicial role is still a
subject for intense debate. In the common law world what defines a ‘great’ judge
remains
a
matter of permanent fascination and,
in
some respects, deep controversy.
In
fact, ambivalence about the character of judicial functions is only to be expected
in
legal systems where judicial authority is, on the one hand, traditionally traced
(as
in
classical common law thought) to
cultural
sources (the judge seen as guardian
and interpreter of community values or of an ancient, even timeless, cultural wisdom)
but, on the other, is practically based in a constitutional framework locating judiciaries
politically
as part of
the
governmental structure of the state. The conditions of debate
seem only to intensify as the regulatory scope and functions of the state grow.
In
these circumstances, recent legal thought in the common law world has
reinterpreted the position of the judge primarily
in
two broad but distinct ways,
each a response to the proliferation of modern governmental controls and regulatory
strategies. One approach has tried to renovate and reinterpret, in the light of modern
political conditions, something like the classical common law conception of judges
as
voices of the culture or community
in
which they adjudicate; asserting, reflecting
and protecting its values expressed through law. While jurists such as Roscoe Pound
and Lon Fuller can be understood as having contributed
in
various ways to this
line of approach, Ronald Dworkin is widely recognised as its most important
contemporary theoretical exponent. Dworkin has tried
to
justify the judicial enforce-
ment of rights
as
part of the legal matrix of the political community’s values, and
has insisted upon a clear distinction between a judicial commitment
to
legal principle
and the governmental task of forming and promoting policy. From a different
viewpoint, an emphasis on the roots of
the
judge’s authority in the social or cultural
context of adjudication niay make
it
possible to recognise adjudication, alongside
arbitration and mediation, as part of a continuum of mechanisms
of
communal peace-
making, the distinctions between these being defined partly by
the
relative distancing
of the decision-maker from
the
social context of relationships
in
connection
with
which a dispute is to be resolved.’
*Faculty of
IAWS,
Queen
Mary and Westfield College, University of Londoii.
I
cf
M. Shapiro,
Corrrrs:
A
Cowrpctrofivc and Politicctl Airolyvis
(Chicago: University
of
Chicago
Press,
1981)
pp
1-20;
L.L.
Fullcr,
The Forms and Limits of Adjudication’ and ‘Mediation:
Its
Forins
and
Functions’ in
K.I.
Winstoit (ed),
Tlw
Priiiciples
of
Social
Order:
Selected
Essays
of
Lori
L.
Fiillcr
(Durham,
NC:
Duke University
Prcss,
1981) pp
87-124, 126-57.
594
Ute
Modertt
I~tw
Review
S4:4
July
1991 0026-7961
To continue reading
Request your trial