The Bramble Bush: On Our Law and Its Study (Annotated) (Legal Legends Series) by Llewellyn Karl N

Author:Llewellyn, Karl N. [Llewellyn, Karl N.]
Language: eng
Format: mobi
Tags: Law
Publisher: Quid Pro Books
Published: 2012-04-23T16:00:00+00:00

The rules that you derive from putting cases together are therefore rules not merely of description but of Ought, major premises from which one concludes that if the rule is correct, a particular further case ought to be so decided and not otherwise; to which is added an implication in fact that the judge in the future case will be on his job.

Now on the level of predicting what will in fact come to pass, clearly there are three places to attack your rule as you thus set it up. One may attack it by challenging your logic: you have slipped in your reasoning; you have, let us say, indulged in the lawyer’s most frequent logical blunder, ambiguous middle, using the same word-symbol in two different senses. Or, and here we recur to the level of observation, you may have so built your alleged rule that it fails to cover some of the cases before you, or covers some of them contrary to their holdings. Then not your logical deduction, but the adequacy of your induction is in question. Or, and finally, one may attack you on your implication about future judges; you may have picked a premise perfectly all right as covering your material, you may have deduced soundly the conclusion which follows—and yet your future judge may kick over the traces. To use the language of my last lecture, his attitude may not admit acceptance of your reasoning. And, since we have seen that every single precedent, according to what may be the attitude of future judges, is ambiguous, is wide or narrow at need, it is clear that your original induction must either run in terms of the future judge’s attitude in this, or else fail to jibe with what he will do.

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