A Critical View

As was referred to earlier, a genuine prediction always aims at the future, even though it is based on past facts. This raises a problem: What, in the end, is the target of the prediction? There are multiple answers to this question.

1. The prediction is targeted toward the end result of the case at hand (e.g., the Supreme Court will affirm the consequence X)

2. The prediction strives to make a future decision understandable, to give it an interpretative background (e.g., the Supreme Court's decision X in situation Y is understandable because Z)

3. The scholar tries to anticipate the (public) arguments used by the judge

4. The scholar predicts the norm the decision (probably, credibly, etc.) is based on, even though the norm is not written out.

Taking Ross' view of the doctrinal study of law into account, the alternatives (1)-(3) can be ruled out. If the prediction solely concerned the end result of a certain case, it would not fulfil the basic requirements of the doctrinal study of law. Contrary to the task of an attorney or other advisors involved with certain cases, the task of legal research is not to anticipate the results of singular decisions.

As regards the alternative (2), it is difficult even to talk about a prediction. Making future cases understandable is not a prediction at all. It is an explanation, and this, in the case of alternative (2), can be at most a reference to an “explanatory conformity” or the motivational foundation of the judge.

The alternative (3) is no more promising. The fact that we have some way of anticipating the arguments used de facto by the court does not necessarily tell us what the content of valid law is. As Ross - like a true realist - remarks on many occasions, arguments can also be nothing more but a faqade (Ross 1958, 55). The decision may be justified with entirely different arguments to those used de facto by the judge, or they may mean something completely different.

As Jerome Frank pointed out, in extreme cases the judge's ulcer, his early-morning quarrel with his wife or losing his calm in the morning traffic may have a decisive influence on the content of the verdict. The arguments must not be taken verbatim. Still, it is in some ways true. We can never find out what the judge really thinks, for we only receive the arguments, having thus to manage with just the facade.

Ross did not take all this seriously. Even the realist doctrinal study of law does not predict mere “faqades”. It tries to reach something deeper, more genuine, and in doing so predicts normative information. What is this?

The answer is bound to the alternative (4), combined with alternative (1). For Ross, the genuine prediction concerns the premises used by the judge - that is, the judicial ideology. He points out that if we are able to predict the legal premises of the case, we will also succeed in predicting the conclusions. In this way, Ross places the judicial ideology in the centre of his prediction theory. The prediction attempts to reach the (de facto) effective normative ideology, or the one that can be thought to be effective.

The prediction does not concern the individual arguments used by the court but whether or not a certain norm - in our case D - belongs to the normative ideology accepted by the judge. He follows that very norm due to the fact that he has inter­nalised the normative ideology in an uncompelled way. For this reason, the norm forms a genuine motivational foundation for the judge’s decision. The motivational foundation of the judge and his knowledge of the facts are what finally define the decision he makes. This is why it is important for the predictive doctrinal study of law to know which (normative) motivational foundation the judge commits to.

This is the point where Alf Ross has to be clearly separated from such American realists as Robert S.

According to Ross, the content of the normative ideology is defined by the sources of law, which are the essential constituent of valid law. The normative ideology, in its turn, consists of directives that do not unambiguously regulate the final decision but give a guideline or a standard according to which the judge is able to orientate further in order to finally find the decisive directive. Into this normative ideology belong not only the norms of law but also those of customs and morality.

Ross calls his conception of ideological behaviourism. This aims at anticipating the behaviour, but selects the ideology that guides the behaviour as its target. Here Ross is drawn far away from rough stimulus-response-behaviourism, and he also takes distance from vulgar court realism. Still, the theory of prediction faces other challenges as well.

First, the usefulness of the prediction theory can be questioned. A judge is not at all interested in knowing the prediction about his own actions. His interest concerns the way he ought to act - that is, the content of the binding normative basis in his case. There is, however, an even more serious deficiency in the prediction theory: it does not make a critique of the court's activity possible.

Robert S. Summers touches the point: “The conception of the lawyer implicit in... predic- tionism does not specifically provide the work that lawyers do in deciding how state power ought to be exercised, what the law ought to be, and whether existing law is good or bad...

This critical function of the doctrinal study of law (critical positivism) has also been emphasised by Stig J0rgensen and Henrik Zahle, among others (Zahle, 335).

The doctrinal study of law is expected to evaluate the interpretations of the adjudica­tion, and to give constructive feedback to the courts. The social task of the doctrinal study of law is partly normative, and in accepting this normative task it necessar­ily becomes critical toward the judicial practice. The doctrinal study of law gives reasoned recommendations on what it is to act in a right way in certain typical sit­uations. The doctrinal study of law that is solely predictive is only a lackey of the courts, not their supervisor.

Ross rejected this critique. For him, the prediction theory does not make the doctrinal study of law a slave to practice (slave af praksis). His answer is firmly attached to his original theoretical hypotheses. Ross says that predictions constantly “live”. When there is new information about the judge's actions, the prediction is adjusted. The prediction A1 in case Y is not probable if, all things considered and including the former decision X, it is probable that case Y will not be decided like X. The predictive doctrinal study of law is thus constantly dynamic. It takes account of all the new information concerning the changes in the normative ideology. Still, there is still an open question: What knowledge is the prediction based on?

According to an orthodox interpretation of the Rossian theory, the doctrinal study of law is based on empirical research dealing with the behaviour of judges. This is why the doctrine of the sources of law is not, according to Ross, normative in its nature. Instead, the doctrine is descriptive and presents the content of judicial ideology in actual use, and this material can be observed empirically.

However, one must know something before asking the name.

Interviewing the judges is out of the question. It produces something like the legitimation of what the judges feel (see) to be the right way to act rather than information about the effective normative ideology. When asked essential questions, man tries to give the best possible image of himself, and judges are only human beings.

There remains only one possibility. The prediction must be based on what one knows about the judges' thinking in general. The scholar has to presume that the judges' thoughts about the content of law are similar to the thoughts of other lawyers, including the scholar himself. As we saw, the “predictor” must have at his disposal the same epistemic internal viewpoint as the judges. Without this, the scholar has no way of understanding the judge's actions.

This means that the scholar has to be “inside” the same normative world as the judge - that is, he has to internalise the same sources of information, and vice versa. The question is not only about the scholar somehow “finding” the descrip­tive sources of law. He also interprets, understands and puts them into the order of preference. The scholar gives the sources of law a content he assumes to corre­spond to the legal community’s general way of thinking about the sources of law. According to this principle, the scholar and the judge have to use (nearly) the same

1. sources of law,

2. legal standards of reasoning, and

3. somewhat similar principles of rational discourse.

To put it in a nutshell, the scholar necessarily has to assume that the judge has adopted a similar, not necessarily identical, but family-resembling way of thinking as he himself.

The Rossian prediction theory does not take this dilemma seriously, which is why his theory leads to mere pseudo-predictions. The scholar might, of course, have a predictive intention, but as a matter of fact, he must base the predictions on exactly the same source material as the non-predictive doctrinal study of law. This con­clusion is not made different merely by naming the statements “predictions”. As far as their content is concerned, they are nothing but a doctrinal interpretation, or weighing, filling normative gaps, using contra legem deliberation, or eliminating contradictions.

It seems to me that Ross was aware of the problems inherent in pseudo­predictions even though he did not draw the necessary conclusions from these difficulties. He even noted that the predictions of the doctrinal study of law are linked with the same self-fulfilling characteristic as “predictions” about society in general. When a prediction is made public, it quite often tends to bring about exactly the consequences that are anticipated in the prediction. This is so because both the “predictor” and his “target” are intertwined with the same societal system, and bound to the same normative basis.

What has been said above does not mean that Ross gave up his empiricist starting points. On the contrary, his intention - from the beginning to the end - was to formulate a true realist (predictive) theory for legal research. However, Alf Ross could not consistently hold to his empiricist thesis. His barely noticeable separation from logical positivism is a necessary consequence of rejecting purely behaviourist legal theory. The essential element of his prediction theory is the notion of judicial ideology, which, in its turn, is a normative phenomenon.

As Ross was quick to deny that the task of the doctrinal study of law is to examine the judge's motivational process using the tools of psychology, there was actually nothing left beyond the acceptance of a non-positivist viewpoint to a certain degree. Ross' theory is both behaviourist as well as idealistic.