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What role do history and sociology play in understanding the law? Charles L. Barzun challenges viewers to consider whether these disciplines can truly be separated from the study of law and, if so, how.

Image courtesy of interviewee. October 24, 2024

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This video discusses the author's intentions behind writing a piece related to a forthcoming book about the American common law tradition. The work aims to uncover the underlying assumptions of legal education and how legal reasoning is approached in the U.S. compared to the U.K. It emphasizes the ambivalence within American legal education regarding the relevance of social, historical, and economic contexts in legal argumentation.

The author explores the traditional distinction in legal practice between "holding" (essential legal reasoning necessary for a decision) and "dicta" (non-essential commentary), arguing that the legal community often dismisses social context as irrelevant to legal arguments. However, they suggest that understanding these contexts can enrich legal reasoning and critique traditional views of legal authority, which often overlook the historical background of legal rules.

The author advocates for a more dynamic understanding of legal arguments that considers these broader implications, encouraging future legal scholars and practitioners to question established norms and explore the nature of legal reasoning over time. Ultimately, the piece serves as a preface to a book intended to delve deeper into these themes and the evolution of legal thought and practice.

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Here are five key points from the video:

1. **Exploration of Common Law Tradition**: The author aims to examine the American common law tradition, highlighting its assumptions and distinctions compared to the United Kingdom, particularly concerning how legal reasoning and legal arguments are constructed and understood.

2. **Ambivalence in Legal Education**: There is a notable ambivalence within American legal education regarding the relevance of social, historical, and economic factors when it comes to legal arguments. While these factors are discussed, they are often dismissed as being outside the realm of acceptable legal reasoning, leading to a divide between legal theory and practical application.

3. **Distinction Between Holding and Dicta**: The video emphasizes the traditional legal distinction between "holding" (the necessary legal principle decided in a case) and "dicta" (remarks in judicial opinions that are not essential to the decision). This distinction illustrates the complexity and evolving nature of what constitutes relevant legal argumentation.

4. **Challenges of Including Broader Considerations**: The piece questions the longstanding practice of excluding broader sociopolitical and economic considerations from legal reasoning, suggesting that these factors may, in fact, have important implications for understanding the law, though they complicate legal arguments.

5. **Case-by-Case Adjudication**: The author argues for the significance of the case-by-case approach in developing law, noting that this method allows for better grasp of relevant facts and tailored reasoning, as opposed to relying solely on broad abstractions. Historical convideo and the origins of legal rules are important to consider, even as caution is urged against simplistic conclusions drawn from historical origins alone.

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Here are some key quotes extracted from the video you , which encapsulate the main ideas discussed:

1. "The purpose of it is to bring out some of the assumptions underlying how we think of law, at least in the United States."

2. "There are interesting distinctions between how the common law tradition has played out in the United States, as opposed to the United Kingdom."

3. "What the piece is really about is about the relevance or irrelevance of background, social, historical, economic, all sorts of different factors in the background of law and in general in legal education."

4. "There's an interesting kind of ambivalence that American legal education has with respect to those kinds of considerations."

5. "On the one hand, teachers often talk about them, on the other hand, there's always a sort of distinction made that well, those aren't legal arguments."

6. "Law has a long history of shutting off and bracketing certain kinds of considerations for a long time."

7. "The traditional distinction is between holding and dicta...everything else...is not necessary to the result."

8. "The distinction...is in a way, how...people read judicial opinions...people just pick and choose."

9. "The structure of reasoning is basically the same...A major premise, a minor premise, and a conclusion."

10. "Courts used to only be very vigorously concerned with that holding versus dicta."

11. "The idea of the common law tradition has been very much a notion that you case by case adjudication."

12. "The process matters...it is literally, it is technically relevant to how we think about the body of law that we have inherited."

These quotes reflect the nuances of legal education, the common law tradition, and the relevance of sociopolitical backgrounds in legal reasoning.

X-TIMESTAMP-MAP=LOCAL:00:00:00.000,MPEGTS:90000

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Wrote it actually originally thinking that I might add it,

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and I may still add it as a, as a kind of preface

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or introduction to a book.

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I'm working about the, the nature of the common law

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or the American common law tradition.

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Uh, and in a way, the purpose of it is to bring out some

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of the assumptions underlying how we think

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of law, at least in the United States.

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And there are interesting dis distinctions between

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how the common law tradition has played out in the

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United States, as opposed to the United Kingdom.

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Uh, but the, but the purpose I'm trying to show is some

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of the, the,

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or the, the purpose of the piece is to bring out some

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of the assumptions of legal education

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and how we think about legal argument and legal reasoning.

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What the piece is really about is about the relevance

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or irrelevance of background, social, historical,

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economic, all sorts of different,

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factors in the background of law

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and in general in legal education.

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There's an interesting kind of ambivalence

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that American legal education has with respect to those,

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those kinds of considerations.

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On the one hand, teachers often talk about them,

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and talk about fill in with historical context.

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On the other hand, there's always a, a, a sort

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of distinction made that well, though,

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but those aren't legal arguments.

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You don't wanna make that, that kind of argument to a court.

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You don't want to talk about the,

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the way some certain rules served a,

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a particular economic function

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or served some economic interest in the past in a kind

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of way that would undermine those rules.

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What they're interested in is how the rules apply

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to the particular case, and they're not interested in the

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past, allegedly, it's a kind of can of worms

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that they don't wanna open.

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I mean, there's a couple different

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ways of answering that question.

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One is, it just would strike,

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and this is one of the things that,

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motivated the piece is that I love talking

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to people about this and sort of asking them,

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and often you get a response that's just sort of, well,

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well, it's not a legal argument, right?

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When you, if you said that, well, that, that kind

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of rule was,

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was made at a particular time in service of white supremacy

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or, or, or to serve the, sort of,

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the commercial interests of the time, the, the, the,

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the kind of response is, well, that's, that's interesting,

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but that's not a legal argument.

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So that's one kind of thing is just, it's, it's a sort

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of brute disciplinary distinction.

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But of course, that's not particularly satisfying.

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And so you want to ask why.

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I think the main reason is law has a long history of,

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of shutting off and bracketing certain kinds

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of considerations for a long time.

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Uh, questions, for instance, about the consequences

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of a legal decision one way or the other.

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What will happen if we have a decision one way

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or the other, you know, that was thought of as a kind

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of policy consideration

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that is not strictly speaking legal reasoning and

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therefore has a, has has either no

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or a very minimal role to play in legal argumentation.

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And when I say legal argument, by the way,

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what I'm talking about is essentially the kinds of arguments

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that either judges would write in formulating an opinion

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or lawyers would present to courts.

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So on the one hand, there's this tradition

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of blocking these kinds of things out.

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But then also oftentimes the, the, the what, what isn't

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what is considered, appropriate

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or permissible legal argument changes over time. That's

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A wonderful question. And goes

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right to one of the mo one

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of the most traditional ways in which the court does this

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kind of cleaving off, right?

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So the traditional distinction is between it, in, in,

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in a judicial opinion, there is what's called a holding,

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and there's what's called dicta.

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And the idea is that the holding is only the, the part

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of the judicial opinion that is necessary

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for the result of the decision.

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So everything else, so the classic example is a kind

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of easy case is there's a famous case about the antitrust,

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exception for ba for major League baseball and the,

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and that it's the Supreme Court, I think,

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and now I'm, I'm sort of having

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trouble remembering exactly this case.

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I think it was the Supreme Court, goes up kind

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of digression about the history of baseball, right?

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That that doesn't, that's not neither here,

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nor that that's not necessary to the result

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of the opinion has nothing to do with it.

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What's much harder is when a court in kind

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of elaborating a series of reasons starts sort

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of speculating and talking broadly about the kinds

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of considerations that bear on a, on a general topic.

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But if one of those considerations didn't actually

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occur in this case, right?

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The party didn't demonstrate a,

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or didn't possess a particular feature

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that the court said is relevant.

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In theory, that's not relevant.

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The court was going beyond

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what was presented to it in the case.

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And, and it's just dicta, it's a thing said is,

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which is the, you know, it's from the Latin

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or a dictum is a, is this is the singular dicta is plural.

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So it's, it's a dictum,

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it's just a thing said it's not necessary to result.

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It's in a sense, it's not really law.

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That is, it's not, it's not part of the holding of the case,

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and therefore, subsequent,

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subsequent courts are not bound by them.

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Now, the interesting thing about the holding distinction,

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the dic, the, sorry, the holding dicta distinction,

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it's hard to get out, is in a way how,

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at least in my experience in legal education

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and in legal practice from people I talk to, and,

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and when my, when I was working for a judge clerking,

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it actually doesn't, it's not a line

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that is rigidly drawn anymore.

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Interestingly, in part because

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of the way people read judicial opinions.

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Now, there used to be, you used to read the whole opinion,

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you'd get out out of a book in a law court,

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but now, people just pick

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and choose that they, they search,

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we do word search on Westlaw

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or a a a, a tech, you know, a a a research tool to, and,

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and just pick out quotes from a case and all.

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If you can get a quote from a passport

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and have a citation for it, that's good enough.

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And it's, it's been sometimes a criti criticism level

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by older judges who say that, you know,

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clerks say they don't understand

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that you can't just pick out a quote.

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You gotta figure out where it comes from in the opinion.

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But that's be, that's been sort of receding in importance.

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So it's, for me, the reason I've mentioned

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that begin the article, that is, that's just, it's the kind

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of most traditional example of this effort

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to draw a distinction.

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Now, this is real law.

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Yes, it's all in a court opinion, but this is the real law.

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This is not real law. And there are a series of those kinds

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of distinctions that, that, that, you know, legal,

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that sort of judges, legal scholars

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and legal theorists have made this idea on the distinction

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on the one hand between the rules and in,

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and the application of the rules to a set of facts, which is

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that the classic and the classic legal reasoning,

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it's called a, a syllogism, right?

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You have a major premise, a general principle,

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classic one is, you know, all men are mortal,

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and you have the minor premise, which is the, the, the facts

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that you get from trial that's like Socrates is a man.

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And from that you deduce a conclusion, which is

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that Socrates is mortal.

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That is the structure of all legal reasoning.

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And it is in sense, internal in the sense that it is,

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it is, that is the kind of reason that courts recognize.

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Now, you can go beyond that.

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Not, not every, not every rule has

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to be a absolutely clear rule.

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There can be principles, right?

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Uh, principles of due process of law,

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equal protection of the laws.

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These might, might think of as principles. They are broader.

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They're less susceptible to like exacting application.

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There'll be more disputes about

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what is included within the principle or not.

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But the structure of reasoning is basically the same.

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And that is what we, what is often referred to as a kind

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of internal kind of reasoning,

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because it is the kind of thing courts do.

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And I guess one of the points of the,

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of the paper is just to show that, well, that's, you know,

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it was also the case that courts used

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to only be very vigorously concerned with

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that holding versus dicta.

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And it used to also be the case that courts, you know, did,

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bracketed all questions of consequences,

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whereas they include them now.

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So what I'm kind of opening the door

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to is why isn't it like, why couldn't courts,

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or is there good reason for courts not

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to take into these broader, what are sometimes treated

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as external considerations,

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the sociopolitical economic background in these cases?

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And it seems to me that there's good reason why you might,

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there are good reason to exclude them,

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and they're hard, they're difficult questions.

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That's why courts exclude them.

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They always want to exclude things that are hard

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and lend themselves to different kinds of arguments.

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And yet I think that it's, that that's there,

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there may be good reasons to include them as well, in a way.

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I don't, and I don't answer that in the dialogue.

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That's what my book is about. That's why it's the

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preface to the book, right?

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So that's what the, the book is about.

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But in a, in a way, I'll, I'll, I'll, I can,

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I can put it this way, which is the, the idea

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of the common law tradition has been very much a, a,

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a notion that you, that the case that

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that the law evolves over time through a, a, a, a process

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of case by case adjudication.

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And there is a kind of theory behind that.

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There, there is an idea that the reason why

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that's a good way to develop the law, to change the law to,

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as a substantive matter, we will get good, you know, in the,

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in the broad areas of law where this has been true.

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There are lots of them, but the classic ones are the private

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law, what's called private law, which is,

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contract law, tort law, which is civil liability,

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people suing each other for injuries and property law.

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Those are the classic, kind of common law, cases.

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Although in the United States, it's always also true

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of procedural law, like evidence law as well.

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They're now codified.

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But the develop, the way that law came to be, the way

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that we got the rules that that 95% of the, you know,

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jurisdictions in the United States

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and in England, the main body of that law came about

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as a result of this process of case by case adjudication.

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It wasn't primarily as a result of statutes being passed.

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And so then the question is why, why think that

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that process is a particularly good one?

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And there are answers to it. There are answers to,

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based on the kinds of, all sorts of different kinds

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of answers about the kind of reasoning

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that judges engage in, they're,

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they're constrained by particular facts.

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They're looking at particulars.

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You get, they get a better grip on the relevant

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considerations than trying to answer in broad abstractions,

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which is harder for the human mind to grab onto.

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In a way, it doesn't matter to me exactly

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what the answer is, but the point is the process matters.

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And these kinds in a way, what the kind of

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what sociological historical arguments that purport

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to undermine that le that historians

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and scholars have have written about the law,

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they often level it as a kind of critique.

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And they're saying, we should be suspicious of these rules.

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Because what was really going on in these cases was

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that it was serving some interest.

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That was not what it purported to be, right?

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It was actually white supremacy.

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It was actually, a commercial interest.

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It was actually, you know,

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I mean the extreme version of this, right?

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The extreme version would be that a judge was bribed, right?

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And so the, so, but these are sort of, there, these are sort

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of weaker versions of that right there.

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The idea is that their judgments were distorted in various

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ways, and that's a reason not

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to trust the process in a particular case, right?

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It seems to me that in this sense, it is literally,

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it is technically relevant to how we think about the body

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of law that we have inherited and that we defer to

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as a matter of authority over time,

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that we think something has gone wrong in the process.

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And as what I, the argument that I make in my book is

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that these kinds of arguments can be understood

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as arguments about, essentially about the legal process over

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time in a kind of broad scale.

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And so that's why they're in a, in a literal sense,

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they're relevant to me

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to assessing the, the value of the rule.

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They're not sufficient to, despite, it doesn't mean

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that if you point to some historical facts,

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that means the rule is bad.

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That would be a kind of crude, example

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of what's called the genetic fallacy, which is assuming

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that the origin of something means that it's bad.

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That's not, that's not,

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that's not valid, but it bears on it.

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It's relevant, it's something you might wanna know.

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It seems to me, I've been thinking mostly in terms

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of from the professor's profess perspective, but,

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but it's a good, I think the, the, I guess in a way,

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the thing that I want most to, to encourage students to do,

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and it's interesting, I'll be talking later today

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to some students here at Stanford,

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about themes very much related to this.

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So I'll have an exam, I'll have an opportunity to, to talk

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to them about this directly,

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but it's to press on these questions is to not,

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to not accept too passively the distinction of, well,

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that's not what courts do, that's not a legal argument.

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Why? What is a legal argument changes over time in

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response to different kinds of things?

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And that, that the, the, the, the discipline of law improves

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and develops over time as a result

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of people asking questions about that.

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So that's what I'm trying to do, you know, in a sense.

Exploring Assumptions in American Common Law

00:00:00 - Wrote it actually originally thinking that I might add it, and I may still add it as a, as a kind of preface or introduction to a book. I'm working about the, the nature of the common law or the American common law tradition. and in a way, the purpose of it is to bring out some of the assumptions underlying how we think of law, at least in the United States. And there are interesting dis distinctions between how the common law tradition has played out in the United States, as opposed to the United Kingdom. but the, but the purpose I'm trying to show is some of the, the, or the, the purpose of the piece is to bring out some

00:00:35 - and how we think about legal argument and legal reasoning. What the piece is really about is about the relevance or irrelevance of background, social, historical, economic, all sorts of different, factors in the background of law and in general in legal education. There's an interesting kind of ambivalence that American legal education has with respect to those, those kinds of considerations. On the one hand, teachers often talk about them,

00:01:06 - On the other hand, there's always a, a, a sort of distinction made that well, though, but those aren't legal arguments. You don't wanna make that, that kind of argument to a court. You don't want to talk about the, the way some certain rules served a, a particular economic function or served some economic interest in the past in a kind of way that would undermine those rules. What they're interested in is how the rules apply to the particular case, and they're not interested in the past, allegedly, it's a kind of can of worms that they don't wanna open.

Examining Legal Arguments: Beyond Traditional Boundaries

00:01:35 - ways of answering that question. One is, it just would strike, and this is one of the things that, motivated the piece is that I love talking to people about this and sort of asking them, and often you get a response that's just sort of, well, well, it's not a legal argument, right? When you, if you said that, well, that, that kind of rule was, was made at a particular time in service of white supremacy or, or, or to serve the, sort of, the commercial interests of the time, the, the, the, the kind of response is, well, that's, that's interesting, but that's not a legal argument.

00:02:06 - of brute disciplinary distinction. But of course, that's not particularly satisfying. And so you want to ask why. I think the main reason is law has a long history of, of shutting off and bracketing certain kinds of considerations for a long time. questions, for instance, about the consequences of a legal decision one way or the other. What will happen if we have a decision one way or the other, you know, that was thought of as a kind of policy consideration that is not strictly speaking legal reasoning and therefore has a, has has either no or a very minimal role to play in legal argumentation.

00:02:39 - what I'm talking about is essentially the kinds of arguments that either judges would write in formulating an opinion or lawyers would present to courts. So on the one hand, there's this tradition of blocking these kinds of things out. But then also oftentimes the, the, the what, what isn't what is considered, appropriate or permissible legal argument changes over time. That's A wonderful question. And goes right to one of the mo one of the most traditional ways in which the court does this kind of cleaving off, right? So the traditional distinction is between it, in, in,

Distinguishing Between Legal Holding and Dicta

00:03:11 - and there's what's called dicta. And the idea is that the holding is only the, the part of the judicial opinion that is necessary for the result of the decision. So everything else, so the classic example is a kind of easy case is there's a famous case about the antitrust, exception for ba for major League baseball and the, and that it's the Supreme Court, I think, and now I'm, I'm sort of having trouble remembering exactly this case. I think it was the Supreme Court, goes up kind of digression about the history of baseball, right? That that doesn't, that's not neither here,

00:03:42 - of the opinion has nothing to do with it. What's much harder is when a court in kind of elaborating a series of reasons starts sort of speculating and talking broadly about the kinds of considerations that bear on a, on a general topic. But if one of those considerations didn't actually occur in this case, right? The party didn't demonstrate a, or didn't possess a particular feature that the court said is relevant. In theory, that's not relevant. The court was going beyond what was presented to it in the case. And, and it's just dicta, it's a thing said is,

00:04:12 - or a dictum is a, is this is the singular dicta is plural. So it's, it's a dictum, it's just a thing said it's not necessary to result. It's in a sense, it's not really law. That is, it's not, it's not part of the holding of the case, and therefore, subsequent, subsequent courts are not bound by them. Now, the interesting thing about the holding distinction, the dic, the, sorry, the holding dicta distinction, it's hard to get out, is in a way how, at least in my experience in legal education and in legal practice from people I talk to, and,

The Evolution of Legal Opinions and Reasoning

00:04:44 - it actually doesn't, it's not a line that is rigidly drawn anymore. Interestingly, in part because of the way people read judicial opinions. Now, there used to be, you used to read the whole opinion, you'd get out out of a book in a law court, but now, people just pick and choose that they, they search, we do word search on Westlaw or a a a, a tech, you know, a a a research tool to, and, and just pick out quotes from a case and all. If you can get a quote from a passport and have a citation for it, that's good enough.

00:05:15 - by older judges who say that, you know, clerks say they don't understand that you can't just pick out a quote. You gotta figure out where it comes from in the opinion. But that's be, that's been sort of receding in importance. So it's, for me, the reason I've mentioned that begin the article, that is, that's just, it's the kind of most traditional example of this effort to draw a distinction. Now, this is real law. Yes, it's all in a court opinion, but this is the real law. This is not real law. And there are a series of those kinds of distinctions that, that, that, you know, legal, that sort of judges, legal scholars

00:05:45 - on the one hand between the rules and in, and the application of the rules to a set of facts, which is that the classic and the classic legal reasoning, it's called a, a syllogism, right? You have a major premise, a general principle, classic one is, you know, all men are mortal, and you have the minor premise, which is the, the, the facts that you get from trial that's like Socrates is a man. And from that you deduce a conclusion, which is that Socrates is mortal. That is the structure of all legal reasoning. And it is in sense, internal in the sense that it is, it is, that is the kind of reason that courts recognize.

Principles and Reasoning in Common Law

00:06:17 - Not, not every, not every rule has to be a absolutely clear rule. There can be principles, right? principles of due process of law, equal protection of the laws. These might, might think of as principles. They are broader. They're less susceptible to like exacting application. There'll be more disputes about what is included within the principle or not. But the structure of reasoning is basically the same. And that is what we, what is often referred to as a kind of internal kind of reasoning, because it is the kind of thing courts do. And I guess one of the points of the,

00:06:50 - it was also the case that courts used to only be very vigorously concerned with that holding versus dicta. And it used to also be the case that courts, you know, did, bracketed all questions of consequences, whereas they include them now. So what I'm kind of opening the door to is why isn't it like, why couldn't courts, or is there good reason for courts not to take into these broader, what are sometimes treated as external considerations, the sociopolitical economic background in these cases? And it seems to me that there's good reason why you might,

00:07:20 - and they're hard, they're difficult questions. That's why courts exclude them. They always want to exclude things that are hard and lend themselves to different kinds of arguments. And yet I think that it's, that that's there, there may be good reasons to include them as well, in a way. I don't, and I don't answer that in the dialogue. That's what my book is about. That's why it's the preface to the book, right? So that's what the, the book is about. But in a, in a way, I'll, I'll, I'll, I can, I can put it this way, which is the, the idea of the common law tradition has been very much a, a, a notion that you, that the case that

Case-by-Case Adjudication: The Foundation of Common Law

00:07:54 - of case by case adjudication. And there is a kind of theory behind that. There, there is an idea that the reason why that's a good way to develop the law, to change the law to, as a substantive matter, we will get good, you know, in the, in the broad areas of law where this has been true. There are lots of them, but the classic ones are the private law, what's called private law, which is, contract law, tort law, which is civil liability, people suing each other for injuries and property law. Those are the classic, kind of common law, cases.

00:08:24 - of procedural law, like evidence law as well. They're now codified. But the develop, the way that law came to be, the way that we got the rules that that 95% of the, you know, jurisdictions in the United States and in England, the main body of that law came about as a result of this process of case by case adjudication. It wasn't primarily as a result of statutes being passed. And so then the question is why, why think that that process is a particularly good one? And there are answers to it. There are answers to,

00:08:55 - of answers about the kind of reasoning that judges engage in, they're, they're constrained by particular facts. They're looking at particulars. You get, they get a better grip on the relevant considerations than trying to answer in broad abstractions, which is harder for the human mind to grab onto. In a way, it doesn't matter to me exactly what the answer is, but the point is the process matters. And these kinds in a way, what the kind of what sociological historical arguments that purport to undermine that le that historians and scholars have have written about the law,

Critical Examination of Legal Rules and Historical Context

00:09:25 - And they're saying, we should be suspicious of these rules. Because what was really going on in these cases was that it was serving some interest. That was not what it purported to be, right? It was actually white supremacy. It was actually, a commercial interest. It was actually, you know, I mean the extreme version of this, right? The extreme version would be that a judge was bribed, right? And so the, so, but these are sort of, there, these are sort of weaker versions of that right there. The idea is that their judgments were distorted in various ways, and that's a reason not

00:09:56 - It seems to me that in this sense, it is literally, it is technically relevant to how we think about the body of law that we have inherited and that we defer to as a matter of authority over time, that we think something has gone wrong in the process. And as what I, the argument that I make in my book is that these kinds of arguments can be understood as arguments about, essentially about the legal process over time in a kind of broad scale. And so that's why they're in a, in a literal sense, they're relevant to me to assessing the, the value of the rule.

00:10:26 - that if you point to some historical facts, that means the rule is bad. That would be a kind of crude, example of what's called the genetic fallacy, which is assuming that the origin of something means that it's bad. That's not, that's not, that's not valid, but it bears on it. It's relevant, it's something you might wanna know. It seems to me, I've been thinking mostly in terms of from the professor's profess perspective, but, but it's a good, I think the, the, I guess in a way, the thing that I want most to, to encourage students to do,

Challenging Legal Boundaries: The Evolution of Legal Arguments

00:11:24 - to some students here at Stanford, about themes very much related to this. So I'll have an exam, I'll have an opportunity to, to talk to them about this directly, but it's to press on these questions is to not, to not accept too passively the distinction of, well, that's not what courts do, that's not a legal argument. Why? What is a legal argument changes over time in response to different kinds of things? And that, that the, the, the, the discipline of law improves and develops over time as a result of people asking questions about that. So that's what I'm trying to do, you know, in a sense.

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