This is a superbly written, pedagogically rich, historically and conceptually informed introduction to legal reasoning. This may well be the very best introductory text to legal reasoning for students of political science and legal institutions because it is rigorous and complex in its discussion of concepts, places legal reasoning in political and societal contexts, and is so cleanly and thoughtfully written. Carter provides students of quite different levels of preparation and knowledge with a rigorous, user friendly, up-to date, and example-filled introduction to legal reasoning and law in society.
One can get an overall view of the organization of the book by listing its chapters: 1. What Legal Reasoning Is, and Why It Matters; 2. Change and Stability In Legal Reasoning; 3. Statutory Interpretation; 4. Common Law; 5. Interpreting the United States Constitution; 6. Law and Politics.
With regard to conceptual framework, it is difficult to label this book as primarily providing an institutional, behavioral, or cultural approach, because there is a weaving together of all these aspects of the study of judicial politics, and more. A central theme of the book is hermeneutical and philosophical; students get a superb analysis of the possibilities of language in general and of legal language, rules, and precedent in particular, as part of the process of political and social change in the American context. Moreover, Carter elegantly informs the reader of the impact of British legal history on American law, without being pedantic. Students also get a subtle feel for judges and lawyers making highly discretionary decisions. This is a book about legal reasoning in the context of the study of politics, power, societal change, as part of a liberal arts curriculum. It is not a book on how pre-law students can be lawyers.
At the core of the book is Carter's pragmatic views on the relationships among politics, legal reasoning, and society. Politics is defined as "Those things people do in communities in order to minimize threats to their well being." Carter continues, "Political behavior sometimes tries to conserve what is and sometimes tries to change what is."(p. 2). On legal reasoning, law, pragmatism, and the role of the scholar, Carter writes the following:
"Legal reasoning refers ... to the political action of justifying the judicial outcome to the polity. Legal reasoning is justification that we can and do evaluate and debate; how we choose is a mystery we cannot and probably need not fathom.(p. vii., preface) "Law is a language by which we constantly reconstruct our communities... It is now particularly hard to justify that there is anything to get right in the abstract except as it matters in practice. What I have to say about law and theory matters less than how we evaluate the political consequences of what judges do and say and how we converse about
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the political act we call adjudication."(p. viii, preface)
To understand Carter's disciplined, pragmatic, and, at times, passionate views on legal reasoning, lets first consider the functions that law serves in society. Legal reasoning, at its best, is not simply personal or self-interested; it is somewhat disciplined to ensure the appearance of fairness. Legal reasoning is a glue for increasing the trust that citizens have in government and society. Most importantly, well-crafted legal decisions and properly chosen legal actions (or inactions) help society by making it more stable and by aiding individuals, groups, and society. He uses the 1992 Casey abortion rights decision as an example of a well chosen and well crafted decision.
Law at its worse occurs "When people believe that judges cynically manipulate legal language to reach partisan and self-interested political ends, faith in fairness and equity ebbs, motives for social cooperation falter, and communal life becomes more nasty and brutish."(p. 2) Carter fears that the "sense of injustice" that results from such perceptions of the law can cause explosive social change, as exemplified by the riots in Los Angeles after the police officers in the Rodney King police brutality case were found not guilty in 1992.
At first glance, if misread, Carter seems to be making an argument from an ethical relativist position, because he seems to say there are no right or wrong answers of values, only choices which are the product of context and a highly discretionary legal process. However, this book includes important references to questions about ethics and to the normative issues that face judges and lawyers. There also is a subtle argument about the relationship between law and politics, one that suggests that legal reasoning may be different from policy-making and politics in important ways.
So the question becomes how different is law and politics and law and policy-making? The reader is teased throughout the book to think about the relationship of law and politics, while always being reminded that legal choices take place in a changing context. This teasing about the relationship between law and politics is quite effective in getting students to stay with the learning of very important (but in less well-crafted books, boring) concepts and definitions about the different types of law and legal reasoning. This book is very effective, pedagogically, in not responding in a conclusionary way to this query about the relationship of law and politics until the last chapter.
Although Carter at times argues that legal reasoning must incorporate new legal theory and the effects of social change, the reader may be confused as to whether judicial decision-making should be viewed as "instrumental" or "constitutive." Perhaps Carter wants it this way, for pedagogical reasons. However, there may be some concerns about this confusion, particularly by teachers of constitutional law and teachers who emphasize the normative, rather than the pragmatic, nature of legal reasoning and the autonomy of law and politics.
This confusion centers on Carter's theory of judging. There is a lack of clarity as to whether judges should be viewed as primarily instrumental or primarily constitutive in their decision-making. Lawyers
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as advocates are assumed to be instrumental in their legal reasoning. Instrumental judicial reasoning views judges as using principles and precedents simply as means to achieve policy objectives, whether of themselves, governing coalitions, political officials who appointed them, the electorate, or public opinion. In such a view there is little, if any, concept of the autonomy of law from politics or society.
Judging viewed as constitutive conceptualizes judges as making decisions by framing legal issues, and case outcomes, only after careful consideration (and taking very seriously) legal principles about the nature of fundamental rights and the polity (political and legal institutions), theories of interpretation, and precedents, rather than viewing such principles, theories, and precedents in primarily instrumental terms. One can ask whether, as Carter argues, legal principles, precedents, and interpretive theories are central to judicial decision-making primarily because judges and courts want to be viewed as powerful, authoritative, and trustworthy, (page 10), or whether judicial decision-making should be viewed as good in itself, as constitutive, because fundamental rights and polity principles in the Constitution and principles basic to the different areas of private law are to be sustained.
Thus, although Carter at times argues that judges take legal reasoning seriously, he must clarify the differences between and implications of viewing legal reasoning as constitutive and as instrumental. He also must clarify his views about differences in the legal reasoning, decision-making, and, perhaps, the motives of judges, lawyers as legal advocates, elected officials, and bureaucrats. To view the use of principles, precedents, and legal theory by judges as primarily instrumental and justificatory supports his disciplined, pragmatic approach to legal reasoning at the cost of understating the constitutive nature of decision-making process in private and public law venues.
With regard to pedagogy, this book is theoretically ambitious and challenging for students; however, it so well written and carefully crafted that teachers can feel at ease in using this book with weaker students. Careful comparisons are made in each chapter with materials that already have been presented. Carter is also masterful at preparing students for materials that will be presented later in the book. Also, there is enough redundancy of concepts and definitions to make them stick, yet not so much redundancy that gifted students will be bored by such references.
The primary strength of the book is that students not only learn, in a cognitive sense, the differences and similarities among legal reasoning in quite different areas of private and public law, but they also gain a "feel" for the process of legal reasoning, especially the discretion or choice-making by lawyers and judges. This is very hard to do pedagogically. The analytic elements of legal reasoning come alive for the reader as she comes to grips with a carefully chosen Illustrative Case at the end of each chapter. Illustrative Cases are chosen with great care from a wide range of legal venues and historical periods. They reinforce the idea that law and legal reasoning have commonalities across time and areas of the law.
Each Illustrative case is followed by
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superb questions which are related, at times brilliantly, to the materials in the chapter. In many chapters, Carter provides an additional case(s) for comparison with the primary Illustrative Case. With each chapter, Carter does a brilliant job in adding to the complexity of questions and asking the student to think about concepts studied in previous chapters.
This book is superb in helping students understand the analytic nature of legal reasoning. The student becomes aware, through text and their analysis of Illustrative Cases, that legal reasoning requires judges and lawyers to analyze facts in a case in light of legal rules, precedents, wider social reality, and normative values which are brought to the specific case. This book is rigorous, analytic, and very respectful of students' analytic abilities. It is a superb text for use in introductory and advanced undergraduate courses on law, legal reasoning, law and politics, and courses which seek to introduce students to private law or seek to combine materials on private law and constitutional law.