Date: Sun, 13 Aug 2006 20:23:52 -0400

From: David Cheifetz

Subject: Law's (Il)logic

Trying not to stray too far into <ahem> metaphysics - :

I think that we can't call policy a tool in the same sense that inductive or deductive reasoning are tools used to produce a conclusion. That's because (1) inductive and deductive reasoning are processes which are supposed to be independent of content and policy is neither of those and (2) if we can use policy at all, we'd use it to either justify using or rejecting a conclusion we've arrived at deductively or inductively.

Expanding on this:

It seems to me that when we're looking at the analytical process of how judges decide, it seems to me that "policy" - defined to be something other than an independently, extrinsically, provable fact or applicable proposition of law, is either

1. a premise in the same sense that a fact or proposition of law is a premise - in which case it is internal to the analytical validity of the process of arriving at the necessarily correct result (deductively) or the more likely correct result (inductively), or

2. some sort of external test of the acceptability or rejection of a conclusion arrived at either deductively or inductively without regard to the policy.

It's implicit in both versions that we have concluded that the policy is relevant to the end result. That decision, I think is either made inductively or by fiat. If it's the latter, though, we're conceding that we haven't any valid, extrinsic, independent, basis for arriving at the conclusion to use the policy. We've resorted to belief that the choice is the right choice conceding we are, at the time of the decision, totally without ability to prove that by any acceptable method. The content of the choice is different but the only rationale for choosing or not choosing was once called Pascal's Wager.

In Judaism it's called Bubbie's chicken soup solution: "It can't hurt". (Pascal plagiarized.)

Be that as it may, in Dorset Yacht, in the passage quoted by Ken Oliphant, Lord Diplock seems to have been using policy in the sense of (1), implicitly stating that if it produced a "yes" answer then that was the end of the inquiry for whether there was a duty of care applicable to the case.

David Cheifetz

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From: Hedley, Steve
Sent: August 11, 2006 11:34 AM
Subject: RE: Law's (Il)logic

So, in summary,

1/ Most references to inductive/deductive reasoning/logic are concerned with factual questions, rather than determining what the law is; though

2/ There are a few references saying that deductive reasoning is one tool for determining common law; however

3/ There are no references ruling out other tools for determining common law (or at least, no-one's produced one yet); and

4/ There are a few (*very* few) attempts to say what those others tools might legitimately be (such as Diplock's "policy").

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