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Styles of judicial opinions

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
  1. 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.