THE JUDICIAL PROCESS RECONSIDERED IN THE LIGHT OF ROLE‐THEORY
| Published date | 01 September 1969 |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb01231.x |
| Date | 01 September 1969 |
| Author | Robert B. Seidman |
THE JUDICIAL PROCESS RECONSIDERED
IN
THE LIGHT
OF
ROLE-THEORY
I.
INTRODUCTORY
ZN
American law schools,
it
has been fashionable for many years
for
professors to demonstrate their intellectual superiority over the
judges by tearing into shreds practically every case studied. The
core of the professorial technique is to demonstrate that, although
the decision purports to be bottomed
on
doctrine, inarticulate major
premises in fact control.
It
is
an easy step to maintain that doctrine
is merely an infinitely plastic, set of theological propositions, useful
to decorate judicial opinions, but useless
in
the prediction of actual
decisions.
Yet every practising lawyer knows in his bones that doctrine
is,
in most cases, not very malleable after all. Most cases involve, not
issues of law, but issues of fact. The law professor’s perception is
warped because of the concentration in law school upon appellate
cases, all
of
which, presumably, raise issues of law.
It
is intriguing that in some sorts of cases-the
‘‘
clear
”
cases-
everyone concerned with the case agrees what is the controlling
law, whereas in other cases-the
“
trouble
yy
cases-not only are
the parties in disagreement about what is the controlling law, but
they are not even in agreement about how to go about deciding
what the controlling rule is.‘,
In
the clear case, agreement arises
because judges do behave in the way that lawyers expect them to
behave. In the trouble case,
on
the other hand, the very same
judges seemingly perform their function in a way that disappoints
the expectations at least of the academic branch of the profession.
Why has this paradox remained
so
long in the law, largely
unresolved?
It
may be that some insights into the answer to thh
question can be obtained from modern sociological concepts, parti-
cularly that of role-theory. We shall first briefly explicate some
of these concepts. We shall then examine the role of the judge-
the goal set for the position and the norms that are supposed to guide
the judge’s conduct in determining what rule of law to apply
in
a
given case. Why that goal is achieved in some cases and
not
achieved in others will be the burden of the remainder of the paper.
11.
SOME
SOCIOLOGICAL
CONCEPTS
Modern sociology conceives of a social system as composed of the
interrelated acts of people.
A
social system has a structure because
1
The term
“
trouble case
”
has been borrowed from Karl Llewellyn. Llewellyn,
The Normative, the Legal,
and
the Law-Jobs: The Problem
of
Juristic
516
Method
”
(1940)
49
Yale
L.J.
1355,
1375-1376.
See
pp.
530-531,
infra.
SEPT.
1969
THE JUDICIAL PROCESS RECONSIDERED
517
there is some degree of regularity of recurrence of these acts. One
of the most important inquiries that one can make about any
particular aspect of a social system is to seek the, nature of, and
reasons for, the observed regularities.2
The members comprising a social structure are differentiated
according to the positions they occupy in
it.
The observed regulari-
ties of a position--i.e., its content-arise because the person
or
persons who occupy the position fulfil a complex of obligations and
exercise a complex of rights associated with the position. The
complex of obligations that comprise a social position are collectively
called its role.8
These obligations and rights are defined in prescriptive rules
called norms. The
norms defining my role as father are, in large part, inarticulate,
although my children will let me know unmistakably
if
I
act in a
way that to them seems to violate my role.
(“
Do act your age,
Daddy.”) Other norms, such as those that constitute Austin’s
“
positive law properly so-called,” are markedly articulated.
Both human and animal colonies exhibit a high degree
of
regularity of behaviour. The human condition, however, is dis..
tinguished from that of lower orders by the normative system, for
it
is through the normative system that consciousness is transformed
into social action.
“
By contrast, the intricate interactions of an ant colony
or
a beehive, like those
of
a prairie dog village, are governed
mainly by instinct reactions
to
natural and social stimuli.
.
.
.
Obviously, then,
if
human behavior is to be adequately
explained, the normative aspect must be dealt with.”
A
contradiction between the norms defining a role and the role
performance of its occupant is called deviancy.
If
one can deter-
mine the cause of deviancy,
it
then may be possible
to
assert
conscious control over the role, either by changing the articulated
norms better to meet the problems that the role-occupant must
actually resolve,
or
by devising better techniques to compel
obedience to the norms,
or
by searching for processes by which the
role occupant can better internalise the norm.
They may be more
or
less well articulated.
111.
THE
ROLE
OF
THE
JUDGE
IN
‘‘
FINDING
”
THE
LAW:
NORMS
ANT)
GOALS
One of the most important decisions a judge makes is to determine
which rule of substantive law is to control a given case. What are
the norms which define his role
in
making that choice, and how
well do they serve to attain the goal which society has set for the
judge’s position
?
2
Johnson,
Sociology
(1960),
p.
16.
3
Ibid.
at
pp.
48
et
seq.
4
Blake
and
Davis,
“
Norms,
Values,
and
Sanctions,”
in
Handbook
of
Modern
Sociology
(Paris
ed.,
1964),
pp.
456, 457.
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