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From: Hedley, Steve
Sent: August 14, 2006 1:32 PM
Subject: RE: 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.
