Date: Mon, 14 Aug 2006 18:31:49 +0100

From: Steve Hedley

Subject: Law's (Il)logic

I am having quite a lot of difficulty in understanding this - due I imagine partly to the hot sun and partly to my own intellectual limitations, not necessarily in that order - but as I understand it, David's full claim is this:

1. All proper judicial reasoning is 'logical' (by which he means that it should always consist of deductive and/or inductive logic).

2. A particular judge may not in fact have used a 'logical' procedure in reaching a particular result, but unless someone else can produce an appropriate 'logical' reason for it, we should doubt whether that judge was right.

3. Judicial reliance on 'policy' might seem inconsistent with this. However, the contradiction is only apparent, because:-

a. It will only be proper to refer to 'policy' if it can be shown that the policy is part of the law - which must be done 'logically' if at all.

b. If the 'policy' is truly part of the law, then it something from which we must then argue using (inductive or deductive) logic. Reference to policy, if proper, is therefore always 'logical'.

c. Any other reference to policy is simply a baseless assertion, and/or is based merely on faith and/or fiat (which to David are all much the same thing, or at least are equally bad). Reference to that sort of policy amounts to an admission 'that we haven't any valid, extrinsic, independent, basis for arriving at the conclusion' (which in David's book is A Very Bad Thing).

I have to say that I don't get to the stage of disagreeing with this - my problem is in understanding, in the first place, in what sense such things can meaningfully be said. It's partly that the repeated references to religious faith in David's argument get in the way. Different readers will have their own views on how terrible it would be if "law's process [were] no more valid than religion" (for some, it might depend on which religion). If David means that assertions of God's existence require careful justification, whereas denials of God's existence don't, I can only express my puzzlement at this. (Before you ask, I'm agnostic.) If he means that all statements of faith are ipso facto invalid, I would point out that not everyone takes that view, which is not compelled by logic - and which sounds to me like a statement of faith.

As to the argument as a whole, David seems to be trying to leap from the unexceptionable proposition that logic (in some sense) plays (some) part in (quite a lot of) judicial reasoning, to the bolder proposition than nothing else does, or should. As to how he can bridge such a logical chasm, I have no idea. It would be easier to cross in a codified system - David might insist on 'logic' in determining the meaning of the code, while conceding that its application involved wider considerations - but the common law is not such a system. On particular points David makes:-

1/ David's narrow and precise conception of judicial reasoning is unrecognisable to me as a description of what judges do - whatever it is that is special about judicial reasoning, that's not it. Negligence cases especially are full of statements about what the judge considers to be reasonable, to be just, to be a proper response to events, to show an appropriate level of skill or degree of care, or to be required by prudence and/or good sense and/or sound public policy. Few of these statements are justified in any manner that David claims as essential. Indeed, the tort of negligence in its modern form assumes that judges are able to make such value-judgments rapidly, without fuss, and without bogus attempts at a 'logical' demonstration of their conclusions.

2/ 'Logic', 'reason' and 'inference' are all used in a variety of senses, and David has yet to convince me that they are all reducible to either 'inductive logic' or 'deductive logic' - still yet that every argument that isn't reducible to one of the two is irrational, or fictitious, or unjust, or lacking in common sense, or all four (which is what he seemed to be claiming in the message starting this thread, on August 9). We all know that judges use logic (however defined), and that they criticise colleagues who appear to be acting 'illogically' (however defined). It's quite another question whether everything they do is reducible to logic.

3/ 'Logic' is certainly a useful set of tools, but some of the most interesting and important problems arise where 'logic' (in whatever sense) can't resolve the problem. This was precisely what Diplock was discussing towards the end of the quote Ken introduced: if both claimant and defendant give good 'inductive' reasons for their arguments, then evidently inductive logic alone cannot solve the problem, and we must have resort to something else. In a common law system, the leading cases tend to be of this sort, and so non-logical reasons are extremely influential, regardless of how often they are invoked.

Steve Hedley
Faculty of Law, University College Cork

----------------------------------------------------------------------------
From: David Cheifetz
Sent: 14 August 2006 01:24
To: 'Hedley, Steve'
Subject: RE: 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.

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