What is Law?

Answer 3: Legal Realism

The Law is what judges say it is.

Gray:

"The Law of the State or of any organized body of men is composed of the rules which the courts, that is, the judicial organs of that body, lay down for the determination of legal rights and duties."

Also, Bishop Hoadly (1717):

"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them."

General idea: the only law that really counts as "LAW" are those rules that courts are willing to apply and enforce.

Some simple evidence for this claim:

* if all the courts in Canada refuse to enforce the obscenity provisions of the criminal code, then those provisions would not have the force of law and would be law in name only.

* laws declared unconstitutional by the courts are "of no force or effect": in other words, they are not laws at all. Such laws will, nevertheless, continue to exist in the law books until they are repealed.

Does all this mean that judges make LAW?

Well, yes and no.

*Difference between "a law" and "the law":

no question that governments make laws.

*But laws, statutes, are not "the law" of the land unless they are applied.

*Gray's idea, better to call statutes "sources of law."

Clearly, judges must take statutes into consideration when they make decisions.

What else needs to be considered?

* constitution

* logic, consistency

* facts of the case

* precedent

Combination of factors, sources makes "the law"

Some interesting consequences of this:

*clearly, Gray disagrees with Austin. Law is not the command of the sovereign. Statutes may well be commands of the sovereign, but ...

*we cannot (really) know what the law is until the courts make decisions in actual cases.

Problem of technological change:

* who owns the air above your property? 1903: could you sue the Wright brothers for flying over your house?

answer: some judge would have to decide the case. Could decide to throw the case out, but would still have to decide it. And the decision tells us what the law is.

*are roller blades "vehicles"?

Sign on bridge: No passing , all vehicles, including bicycles.

Can you pass a roller blader?

If a ticket is contested then some judge may be called upon to determine your guilt

Upshot: judges are in the habit of making ex post facto law (retroactive law).

Retroactive law is generally thought to be a bad thing. Why?

Retroactive law violates the idea of the rule of law: people cannot be guided by rules that are made after they have acted

But judges often have no choice but to make law "after the fact", even if they decline to convict,order damages, etc.

Decisions are required to adjudicate disputes: these decisions determine what the LAW is.

Questions:

1) Does this mean that judges really do create law, after all?

2) Could it be that judges discover the law?