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Bad man theory of law

8 938 1257
14.07.2018

If you think a judicial verdict is about legal reasoning that explains how a judge came to a certain conclusion while being guided by legal texts, you don’t want to read Judge Muhammad Bashir’s judgment. Those who are already convinced that Nawaz Sharif is a money-launderer living on stolen money need no reasoning. Those who were relying on a judicial account of how law and legal processes lead to such conclusion won’t find anything useful in the judgment. It adds nothing to what has been said in the media trial convicting NS.

Jurists have long mulled over what judges say they are doing while deciding cases, what they actually do and if there is a gap between the two. Theories such as formalism and legal realism are rooted in such inquiry, the purpose of which is to be able to predict legal outcomes with certainty. Rule of law is different from rule of men because – irrespective of the personal morality of a judge – it allows one to predict legal outcomes by applying statutory texts, settled legal principles and judicial tests to the facts of a case.

Oliver Wendell Holmes, Jr, a proponent of legal realism had argued that, “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” He articulated the bad man theory of law: bad men are not concerned with the morality or logic of law but only the penal consequences it will produce for them. Herbert Hart’s ‘The Concept of Law’ was a blow to legal realism; it underscored that, if courts weren’t guided by legal rules, the distinction between rule of law and rule of men would vanish.

In Pakistan, we are still debating the need for due process. Justice Scalia argued in ‘A matter of Interpretation’ that, “of all criticisms levelled against textualism, the most mindless is that it is formalist. The answer is of course it is formalistic! The rule of law is about form… A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbour has filmed the crime and the murderer has confessed…We nonetheless insist that before the state can punish this miscreant, it must conduct a........

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