Precedents, Statutes, and Analysis of Legal Concepts

Interpretation

Scott Brewer, Scott Brewer

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135643096
• Edition: 1
• Topic: Philosophie
• Subtopic: Histoire et théorie de la philosophie

At least since plato and Aristotle, thinkers have pondered the relationship between philosophical arguments and the "sophistical" arguments offered by the Sophists -- who were the first professional lawyers. Judges wield substantial political power, and the justifications they offer for their decisions are a vital means by which citizens can assess the legitimacy of how that power is exercised. However, to evaluate judicial justifications requires close attention to the method of reasoning behind decisions. This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power.

Fallacies of the Logical Form in English Law

A Study of Stare Decisis in Legal Flux

By Julius Stone*

Part I

Can the Common Law Theory of Precedent be Reconciled with the English Judicial Achievement?

IT SCARCELY requires demonstration that the assumption o£ the necessary pre-existence of 'legal propositions,' that is, of given premisses, from which the particular decision is to be derived, is still common in English legal thought, though these entities go under the name of 'the principles of law.' The idea is also not uncommon that further propositions can properly be arrived at on the basis of deductions from these first propositions. Language to both these effects teems in the reports and in the books. Yet there is much language to the contrary as well. 'We have in England a deep distrust of logical reasoning; and it is for the most part well-founded. Fortunately our judge-made law has seldom deviated into that path; but on some of the rare occasions when it has done so the results have been disastrous.'¹ This statement perhaps underrates the extent to which 'logical' (in the sense obviously intended of syllogistic deduction from existing legal propositions) is sought by our courts. Lord Wright has recently pointed out² that the use of 'fundamental rules of law' by later generations of judges as the basis of logical development is an important part of the common law judicial process; and this surely accords with the general view. But in its main assertion Judge Konstam's assertion cannot, with respect, be disputed. Many such highly authoritative admissions will be found in the English literature.³

What seems lacking is the will of lawyers to address themselves to the difficulties consequential on such admissions, so well posed in recent years by Lord Wright.⁴ 'I have often wondered,' he has asked, 'how this perpetual process of change can be reconciled with the principle of authority and the rule of stare decisis’.⁵ A similar penetrating observation had been made long before by another scholar as critical of logicism as Lord Wright himself. Eugen Ehrlich expressed the view in 1913 that the English system of precedent is a supreme example of the 'free finding of law' by the judges. Professor Ehrlich concluded that English judges had to a remarkable degree used this power to endow with the force of 'legal propositions' the actual rules of behavior which from time to time sprang from the inner ordering of English social groupings.⁶

No doubt, in some degree, Professor Ehrlich writing as he was, at a distance and in general terms, overlooked the many examples of judicial conduct which showed no consciousness of its creative function. But when this and other⁷ allowances have been made, the main point which he shares with Lord Wright remains. It is the case, whatever the form behind which it has been concealed, that the work of English courts from the medieval period onwards represents a great achievement in legislation by reference to the changing facts of social life as seen in the actual behavior of associations of men for the time being.⁸ And it is also the case that this was achieved and continues to be achieved not because of, but rather in spite of, the apparent reliance on legal conceptions and propositions and on pure deductions from them. The real grounds of this judicial activity have been the stuff on which all legislation proceeds. In Holmes' still apt words:⁹

The actual life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which law shall be governed.

And what Holmes in 1881 asserted for the past, a learned Lord Justice has also recently asserted for our own age, claiming that the organic growth of the common law has continued 'in the last 100 years at an ever-increasing rate of progress, as new cases, arising under new conditions of society, of applied science, and of public opinion, have presented themselves for solution by the Courts.'¹⁰

This state of affairs raises a question or capital importance. What are the features of the English system of precedent which can give an appearance of stability and continuity and, nevertheless, permit constant change to take place, new propositions to be established, old ones discarded in whole or in part, and permit all this to proceed seemingly on the basis of logical deduction from pre-existing premisses? Not the least reason for this capital importance is this. If it be the case, as is here submitted, that the determinative factors lie in experience of the actual world and the search for justice or 'convenience' in new situations,¹¹ it would follow that adequate attention to these matters in juristic discussion and judicial decision would become an urgent practical necessity. This urgency would be increased by the fact that in legal education little or no attention is given to them;¹² and, as will appear in the following pages, the amount of conscious judicial attention seems limited.

1. How Far Is This Achievement Based on Logical Deduction from Existing Principles of Law?

If the modern view of the limitations of merely deductive techniques be sound, we are immediately challenged to reconcile it with this undoubted English judicial record of sound adaptation of law to social change. That, too, is the conundrum propounded by Lord Wright. 'One cannot,' said Professor Ehrlich, speaking of the comparable problem for the continent, 'solve a difficulty of this nature by closing one's eyes to it.'¹³ Nor is it sufficient to point out that the logic on which decisions claim to be based is often far less impressive than the concrete decision in relation to the situation before the court.¹⁴

Lord Wright thought that the answer to this question was to be looked for in the 'logical process implicit in judicial reasoning when it deals with the law of the case,' as modified by the special 'empirical methods of the common law and its reliance on a mass of authoritative decisions,' and by 'temperament and social predispositions.'¹⁵ He commended a clarification of this process to 'some ingenious and learned writer.' This may be taken as a high warrant of the importance of this inquiry.¹⁶

The dualism is, without doubt, a deep reality. Most British judges and lawyers all the time, and all of them some of the time, do regard judicial decisions as either direct applications of existing law, or logical deductions from some existing principle. When, with his wonted spirit the late McCardie J. ventured to observe ¹⁷ that the object of the common law was to solve difficulties and adjust relations in social and commercial life, grow with the development of the nation, and deal with changing and novel circumstances, and added that an expanding society demands an expanding common law, this ground of decision was not received with acclaim or even tolerance. It was indeed strongly disapproved in the Court of Appeal.¹⁸ While the utterances of a Lord Wright cannot so lightly be repudiated by colleagues, it must be admitted, with respect, that even Lord Wright's decisions seem sometimes to proceed on the orthodox assumptions.¹⁹

Even where it is recognized that there is some held for decision left free of logical compulsions, this field tends to be regarded as somewhat anomalous and still capable of occupation by judicial 'development' of existing principles. And this is confirmed by the fact, well known to counsel, that even in cases of first impression they are likely in most courts to fare better with holdings sub silentio, tenuous dicta, verbal analogies, and syllogistic deductions, than with a straightforward argument based on the social facts to be regulated and the policies applicable thereto.²⁰ Yet, if logic does not compel, on what else can sound decision be based?

In support of these inconsistencies it is often argued that certainty of result is as important as justice of result, or better, that certainty is an important element of justice.²¹ 'It would,' it is said, 'be unendurable for a man to have to rely on his own moral judgment in order to know what view a court would take of his actions.'²² The assumption, it will be observed, is that the growth of the common law in the past has not required such endurance—an assumption in itself presupposing independence of variable moral judgment, but dictated by the logical eking out of existing legal principles.

2. Uncertainty of Operation of Syllogistic Logic in the Judicial Process

Lawyers readily admit today that cases do occasionally arise requiring a judicial choice free of logical compulsions, either because a substantial part of the facts are of first impression or because there is square conflict of preexisting authority. We are not here concerned with this narrower field, but rather with the much wider one in which decisions and commentation on them still take the form of logical derivation and logical testing, it is, it is believed, in this wider field that our system of precedent determines whether the common law shall or shall not grow into adequacy for contemporary problems. And in this wider field the question is: How is it possible for courts by supposedly necessary logical deduction from non-contemporaneous premises and apparently without entering upon social and ethical inquiries to reach conclusions well adapted to contemporary problems? It is assumed in the following discussion that the judicial achievement in this regard justifies the common estimate.²³

The answer has repeatedly been made, especially since Holmes, that on the one hand the 'logical form' is often 'fallacious'; and on the other, the exclusion of considerations of social needs, social polici...