Chapter

Classical Orthodoxy and Legal Realist Responses Through the Lens of the Heuristics Debate

Mark Kelman

in The Heuristics Debate

Published in print March 2011 | ISBN: 9780199755608
Published online May 2011 | e-ISBN: 9780199895236 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199755608.003.0009
Classical Orthodoxy and Legal Realist Responses Through the Lens of the Heuristics Debate

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While neither Langdell nor Holmes self-consciously addressed the nature of human cognition in defending, respectively, the Classical synthesis about law or a more pragmatic Realist approach, this chapter argues that it is instructive to see Langdell’s beliefs as homologous with F&F conceptions, to see some parallels between Holmes’ thought and H&B theory, and to see MM theory and “fact-type” Realism as related. Langdell’s arguments for base level rules resonates in the F&F idea that cognition is lexical; more subtly, the principles that he believes can be deduced by careful study of existing case law are not natural or intuitive but otherwise strongly resemble the basic cognitive tools in the F&F adaptive toolbox. Holmes believed that our problem-solving “intuitions” developed historically and collectively to a greater extent than they derived from individually adaptive cognitive algorithms. But like H&B theorists who describe the relationship between System One and System Two thinking, Holmes believed that such intuitions exist to meet functional ends, and that following them will generally do so, but that we have the capacity to override them.

Keywords: Langdell; Holmes; rules v. standards; legal formalism; Legal Realism; Classical Legal orthodoxy; fast and frugal heuristics; fast and frugal rules; legal pragmatism Leon Green

Chapter.  11500 words. 

Subjects: Jurisprudence and Philosophy of Law

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