By Ian McLeod LLB BA BPhil (auth.)
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However, mature consideration makes it plain that (whether or not you find Holmes, Dworkin, or any other legal theorist convincing) something beyond the legal texts must come into play in legal reasoning, if only because a legal text (or, at least, a legal text which has generated sufficient disagreement to bring the parties to court) will seldom have a single plain, or literal, meaning. 'The literal meaning is a potential meaning rather than an actual usage; it is a conventional meaning within a system of such meanings (dictionary) rather than an actual use of the word in combination with other words.
The heart of the matter, of course, is that most people would acknowledge that defining justice and applying its requirements in a concrete situation are both very largely matters of subjective judgment. Suppose, for example, that a thief steals my property and sells it to you. Suppose also that you acted in good faith, with no suspicion that the property was stolen. Does justice require that you return the property to me, on the basis that the act of theft cannot have destroyed my legal title to it?
A brief consideration of the views of two legal theorists will illustrate the point. 4 Legal Method Oliver Wendell Holmes (1841-1935) was one of the founders of the school of thought known as American Realism, the central tenet of which is that what actually happens in the courts is what really matters. Placing the emphasis on 'law in action' rather than 'law in books', Holmes says, 'the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law'. ) Furthermore, having stated what is probably his most famous maxim ('the life of the law has not been logic, it has been experience', which is found on the first page of his textbook The Common Law, published in 1881 ), he puts the relationship between logic and experience thus: 'The training oflawyers is a training in logic ...