Date: Wed, 9 Aug 2006 23:57:45 -0400

From: David Cheifetz

Subject: Law's (Il)logic

I'm looking for judicial statements about logic or appropriate methods of legal reasoning which trigger a double-take, which make one ask oneself "did the judge(s) really mean what the written words mean?".

For example, in Haag v. Marshall (1989) 39 B.C.L.R. (2d) 205, 61 D.L.R. (4th) 371, [1990] 1 W.W.R. 361 (B.C.C.A.) the court expressly stated that judicial reasoning need not be logical (by any meaning of logic) and yet will still be based on common sense and justice.

Where a breach of duty has occurred, and damage is shown to have arisen within the area of risk which brought the duty into being, and where the breach of duty materially increased the risk that damage of that type would occur, and where it is impossible, in a practical sense, for either party to lead evidence which would establish either that the breach of duty caused the loss or that it did not, then it is permissible to infer, as a matter of legal, though not necessarily logical, inference, that the material increase in risk arising from the breach of duty constituted a material contributing cause of the loss and as such a foundation for a finding of liability.

(213 BCLR - underlining added)

Then the court when on to state that whether that sort of "logical" inference should be made depends on whether it would be "in accordance with common sense and justice" (213) Putting this together, we have the court telling us that, for law, a common sense and just conclusion can be one which is not logical; that is, irrational.

The court didn't explain how the universe of inferences which are not logical can be anything other than irrational and how an irrational inference can be one based on common sense and justice.

Let's call this a whopper of a legal fiction and leave it at that, for now, even though the court didn't suggest that it was employing the fiction device by deeming this approach to be "logical". (Legal fiction is as good as any explanation for the Wilsher/Snell robust inference approach).

The higher up the pecking-order and the more explicit the better, of course.

Thanks,

David Cheifetz

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