INTRODUCTION
Judicial opinions (also known as legal opinions, legal decisions, or cases) are written decisions authored by judges explaining how they resolved a particular legal dispute and explaining their reasoning. An opinion tells the story of the case: what the case is about, how the court is resolving the case, and why.
Since the times of Holmes some legal scholars were of the view that judicial opinions cannot only be governed by strict rules of logic and reasoning but more on experience.
As those “rule skeptics” saw it, the trouble is that the formal legal rules enunciated in courts' opinions-sometimes called 'paper rules'-too often prove unreliable as guides in the prediction of decisions. The rule skeptics believe that they can discover, behind the 'paper rules,' some 'real rules' descriptive of uniformities or regularities in actual judicial behavior, and that these 'real rules' will serve as more reliable prediction-instruments.Therefore they had to embark on developing a judicial style that would increase the "reckonability'' and right result of the law..One of the important proponents of this kind style of judicial opinion after Holmes was Professor Karl Llewellyn (1893 -1962). According to Llewellyn, judges could achieve reckonability of result through the use of fourteen "steadying factors”.
The said fourteen factors include the following:
(1) Law-conditioned Officials; (2) Legal Doctrine; (3) Known Doctrinal Techniques; {4) Responsibility for Justice; (5) The Tradition of One Single Right Answer; (6) An Opinion of the Court; (7) A Frozen Record from Below; (8) Issues Limited, Sharpened, Phrased; (9) Adversary Argument by Counsel; (10) Group Decision; (11) Judicial Security and Honesty; (12) A Known Bench; (13) The General Period-Style and Its Promise; and (14) Professional Judicial Office.
According to these scholars, there are three Different Styles of Judicial Opinions, namely:
1. Grand Style (policy-validation of decisions)
2. Formal Style (formalistic/legalistic)
3. Realistic Style (empiricistic life of law experience not logic –Justice Oliver Wendel Holmes) .
A Grand Style of a Judicial Opinion is a style of opinion making which considers policy and other social factors in the process of reasoning. According to these scholars, there are three Different Styles of Judicial Opinions, namely, Grand Style (policy-validation of decisions)
Formal Style (formalistic/legalistic)
Realistic Style (empiricistic life of law experience not logic – Justice Oliver Wendel Holmes)
- A Grand Style of a Judicial Opinion is a style of opinion making which considers policy and other social factors in the process of reasoning.
- Formal Style of a Judicial Opinion is a style of opinion making which is more formal and “legalistic” as it is based on rules of reasoning being guided by principles of stare decisis and precedents.
- Realistic Style Opinion is a style of opinion making which considers empirical evidence and experience of the judges rather than rule-based logic.
- Realistic Style differs from a Grand Style in the sense that the latter in the process of opinion reasoning it is not limited to formal rules of reasoning, it considers other factors, that is where its “grandness” comes from.
Formal Style
- A Formal Style judge tends to emphasize on bare legal precepts and blackletter law;
- Essentially, formalism refers to the view that judging is a rule-bound activity.
- Non- legal rules have little or no bearing on the outcomes of cases. According to formalists, judges apply the governing law to the facts of a case in a logical, mechanical, and deliberative way. For the formalists, the judicial system is a “giant syllogism machine,” and the judge acts like a “highly skilled mechanic.”
- Formalism owes much of its existence to the notion of law as legal science.
- (ii) Second, a Formal Style judge shuns resort to considerations of social fact;
- This school of thought views law as a rational, gapless, complete, and almost geometrical system.
- It is a self-encompassing system in a sense that all that is needed can be found within the system, within the legal rules.
- It is the school that views law as “Reason is the life of the law; nay, the common law itself is nothing else but reason” as per Sir Edward Coke
- (iii) The Formal Style judge does not consider guidance to the practicing bar and to society to be a major factor in his opinions;
- They argue that if law is a rational science, then in a complete and gapless legal system judges need no recourse to external rules; solution to any case can be found within the system itself – a judge needs to use only rules of logic, primarily deduction.
Grand Style
- A Grand Style judge looks to the principle or reason behind the rule.
- As far as this difference is concerned, Llewellyn opposed the use of what he called “illegitimate precedent-handling techniques”, which he described as "[d]eliberately [turning] the back upon pertinent but uncomfortable authority, leaving it unmentioned and therefore leaving the question open as to how the matter now really stands”.
- He frowned upon distinctions of precedent "without explicit reason addressed to the wisdom of distinguishing.“
- He argues that as with case law rules, the court must seek the meaning of a statutory rule by examining its reason and purpose—
- He contends that a statute without reason and purpose is meaningless and nonsensical.
Grand Style
- A Grand Style judge deliberates using "situation-sense.“
- Llewelleyn proposed the concept of “situation-sense” in what he claims was an effort to solve problems and disparities in the understanding and thinking of the judges;
- He called it the problem of "horizons," Llewellyn's situation-sense was intended to help equalize the disparity in personal horizons that exists among judges in relation to the judge's perspective, which was acquired-by life experience within a group or on the basis of briefs and oral argument. The Grand Style judge fashions rules and decisions that provide "guidance for the future” and that, as a result, improve the reckonability of the law.
- Llewellyn stated his theory of stare decisis in a nutshell:
- That "Rules guide, although they do not control, decisions'"
- Having so written, however, he went on to prove that the concept of precedent, like the Rule Against Perpetuities, may be easier to put in a nutshell than to keep there.
The Realistic Style
- Legal realists, argue that legal rules, at least formal legal rules, do not determine outcomes of cases. Legal Realism, was a movement that arose in 1920s and 1930s in the US, challenged the prevailing view that judges are rational decision-makers, who apply only legal rules found in law books to the facts of the case. Overall, however, realists asserted that often judges make up their mind about the outcome even before they turn to legal rules; often they will use policy principles and make new law.
- For the realists, the judge “decides by feeling and not by judgment; by ‘hunching’ and not by ratiocination” and later uses deliberative faculties “not only to justify that intuition to himself, but to make it pass muster (assembly). The birth of legal realism is largely credited to the jurist who probably would not consider himself a realist – Oliver Wendell Holmes, Jr.
Holmes famously wrote that “the life of law has not been logic; it has been experience.” Holmes essentially argued that changes in law (at least judge-made law) were not due to logic or pre-existing law; instead, policy preferences or pe Realists also argue that “judicial opinion necessarily is the justification of the personal impulses of the judge” and that . The character of these impulses is determined by the judge’s life-long series of previous experiences, with their resultant integration of emotional tones. personal experiences of judges mattered more.
STARE DECISIS/PRECEDENT
- Basically the doctrine of stare decisis means that courts look to past, similar issues to guide their decisions, the past decisions are known as precedent. Precedent is a legal principle or rule that is created by a court decision, this decision should be an authority, for judges deciding similar issues later or in the future. The rationale behind the doctrine of stare decisis is to expedites the work of the courts by preventing the constant reconsideration of settled questions; this would assure stability in the court system;
- First is the goal of assuring stability in commercial relationships. In some cases, contracts or title to property may be premised on a rule established by case law; overruling such precedent would undermine vested contract and property rights.
- Second, a doctrine of reliance on precedent furthers the goal of stability by enabling parties to settle their disputes without resorting to the courts.
- Thirdly, preservation of the psychological need to satisfy reasonable expectations.
- Stare decisis is also thought to preserve the Court's legitimacy.
- Under this view, public respect depends on a perception that the Court's decisions are governed by the rule of law, and not other factors such as the political process.
- It also enhances rule of law by showing that court decisions are governed by law, not other pressures.
Source
Paul W. Kahn (2001), Making the case, the art of judicial opinion.
