The Concept of Law in Judicial Decision

Abstract

The concept of law is as varied as the ends which it is thought to serve. However conceived — as an all-pervasive Reason in the nature of things (Montesquieu), as the “artificial Reason and Judgment” acquired through long study and experience and embodying the wisdom of successive generations (Coke), as an aggregate of rules or “commands of the sovereign” (Austin) or as “the prophecies of what the courts will do in fact” (Holmes) — each concept embodies a philosophy of its own. It not only explains the function of law, but also the nature and limits of law as a rational means of ordering human conduct. Moreover, the concept of law in turn determines the tasks of judicial decision. Thus, a static, formal or purely consensual concept of law, as is prevalent in the theories of legal positivism considered in this Chapter, may define judicial interpretation purely in terms of existing rules, system or power relationships. Yet if, as will be shown, law is much more than this, if indeed law is neither static nor purely formal, but a concrete system of values in the process of continuous reformulation and development, then what does this imply for judicial decision? The answer must be sought in those limits inherent in the nature of law. These are the limits to knowledge, authority and practicability. They are reflected in judicial decision and frame the major tasks of judicial interpretation.