The Judicial Reasoning Essay

In the entry titled The Bramble Bush written by Karl N. Llewellyn, he discuses his theories of judicial reasoning. He first defines precedent as a past case used as an example or guide. He describes precedent as “the official analogue of what, it society as large, we know as folkways, or as institutions, and of what, in the individual, we know as habit (5).” Precedent helps the judicial institution to determine what had been done and view the ways in which the law was applied or retracted. The existing documents help in consulting and keep the practice of law from changing unexpectedly. Lawyers will use precedent to search for cases, which support his point. This will help to determine the possible outcome of the case, before it has entered the courtroom, and while in the courtroom, will try to impress upon the court to make the same decision it has made in a previous case. Llewellyn states that “to know the law is helpful, even when the law is bad. Hence it is readily understandable that in our system there has grown up first the habit of following precedent, and then the legal norm that precedent is to be followed (5).” Under a general rule courts will decide using the decisions used previously.
Llwewllyn also discusses precedent viewed in two ways, the strict and loose view. Strict defined in constitutional law means something different in the ways in which Llewellyn defines it. Strict construction involves determining the intentions of the framers of the Constitution and following their intentions in contemporary cases. Llewellyn views strict view of precedent uses by a judge or lawyer who wants to reject a past case in its entirety or just certain aspects of it. The strict view might often contradict the intentions of the judges in previous cases. This view however, is rather difficult to use. An inexperienced or unskilled judge might find this difficult to use because the past may bind him. But the skillful judge who uses the strict view will have the control, and his decision will be predicted by using the facts alone. The loose view is defined as the view that a court has decided, and one decided authoritatively, any point or all points it chose to rest a case, or after argument chose to pass. “In its extreme form this results in thinking and arguing exclusively from language that is found in past opinions, and in citing and working reference to the facts of the case which called the language forth (16).” The strict view is not used to cut past opinions away from the judges, but to use them as a “springboard” when they are convenient. While Karl Llewellyn believed that judges use precedent as the basis for their decision, Jerome Frank believed that judges make decisions based on their own beliefs.
Writing on the judging process and the judge’s personality, Jerome Frank suggests that judges make their decisions based on the same thinks the general public would. The judge’s decision is most likely determined by a hunch established on elements such as:
Tone of voice in which a witness’s statement is made, the hesitation or readiness with which his answers are given, the look of the witness, his carriage, his evidences of surprise, his gesture, his zeal his bearing, his expression, his yawns, the use of his eyes, his furtive or meaning glances, or his shrugs, the pitch of his voice, his self-possession or embarrassment, his air of candor or of seeming levity (24).

To his or her own benefit, the attorney might use decisions in the past to establish the most possible outcome of the present case. Characteristics such as the ones listed above will also help an attorney to prepare his witnesses for testimony to achieve the desired decision. Frank stresses that judges decide by their feelings rather than judgement, a decision obtained by a hunch ration than “ratiocination.” Hunches are more or less a sign of the judge’s political, economic and moral prejudices. A policy argument or decision made by the judge, reflects Frank’s theory of the decision making process. These characteristics reflect the affection or animosity to the individual or group being tried. These prejudices may exist due