Legal reasoning (crosspost from Crooked Timber)

Not surprisingly, the US Supreme Court’s non-decision on equal marriage has caused plenty of debate, including John Holbo’s smackdown of NR’s Matthew Franck.

The discussion got me thinking about the broader problem of legal reasoning, at least in its originalist and textualist forms, and also in precedent-based applications of common law. The assumption in all of these approaches is that by examining (according to some system of rules) what was legislated or decided in the past, lawyers and judges can determine the law as it applies to the case at hand. There are all sorts of well-known difficulties here, such as how words written a century ago should apply to technologies and social structures that did not exist at the time. And it often happens that these approaches produce results that seem unacceptable to most people but for which a legislative or constitutional fix is impossible for some reason.

It’s always seemed to me, though, that there is a much bigger problem with this approach, namely the implicit assumption that “the law” actually exists. That is, it is assumed that, if the appropriate procedure is used to interpret the inherited text, and applied to the problem at hand, it will produce a determinate answer. But why should this be true? The same law might contain contradictory clauses, supported by contradictory arguments, voted in by different majorities, and understood at the time of its passage in contradictory ways. Most notably, the same constitution might grant universal freedoms in one place, while recognising slavery in another.

At a minimum, such contradictions mean that there is no determinate law on the particular points of difference. But the problem is worse than this. The law rarely prescribes an exact answer in a specific case. The standard view of legal reasoning is the principles can be extracted from case law, then applied to new cases. But contradictory laws and contradictory cases produce contradictory principles. The ultimate stopping point is the paradox of entailment: a contradiction implies anything and everything.

I don’t have a fully worked out answer to this problem but I think it underlies a lot of the disquiet so many people feel about legal reasoning (apart from the ordinary disappointment when the answer it produces isn’t the one we want).

28 thoughts on “Legal reasoning (crosspost from Crooked Timber)

  1. I think maybe it would be hard to fly into Australia and land without organizing permission. Also charter plane companies are unlikely to hire out their planes to fly all the way to Australia without Australian permission.

    So it would be harder to come to Australia by air without adhering to the regulatory framework. People do arrive in Australia by airplane and subsequently assert their refugee status – but they are rarely found to be refugees. Australia has more tight restrictions on getting visas to visit Australia for people in countries where there are likely to be refugees – so usually someone who would like to flee say Iran cannot get a visa to fly to Australia where they could then assert their refugee status – since they are unlikely to be able to get a visa then they might try to get to australia by land and boat, without meeting the regulations, instead.

    I am not agreeing with this, just saying I think this is why the focus is on boats rather than airplanes, as its harder to escape the air travel regulations.

    Also, I think australia is not alone in its focus on trying to limit opportunities to claim refugee status here. Most wealthy countries are doing this now in various sorts of ways – the number of refugees and displaced people globally is now over 50 million people – higher than at any time previously – and wealthy countries are not trying to settle them properly.

    There really needs to be a global program in place to permanently settle however big the percentage is of the 50+ million who want to be permanently settled elsewhere – and temporarily settle the others until they can safely return home. And while this is being done more needs to be done to increase peace and understanding, instead of what we do now which is increase competition, exploitation, tension, and conflict. This is just common sense, but governments seem to have a great shortage of common sense.

  2. @ZM

    Re: Air arrivals seeking asylum and rarely being found to be refugees (from “Asylum seekers and refugees What are the facts?” aph.gov.au 2013):

    Until recently, the vast majority of asylum seekers applying for protection in Australia arrived originally by air with a valid visa and then applied for asylum at a later date while living in the community. Historically, boat arrivals only made up a small proportion of asylum applicants—estimates vary, but it is likely that between 96 and 99 per cent of asylum applicants arrived by air.

    More recently the proportions of Irregular Maritime Arrival (IMA) and non-IMA (that is air arrival) asylum seekers have shifted due to the increase in boat arrivals. However, boat arrivals still only comprise about half of Australia’s onshore asylum seekers…

    Although the proportion of asylum seekers arriving by boat has increased significantly in the last few years, and boat arrivals continue to be the focus of much public and political attention, they are in fact more likely to be recognised as refugees than those who have arrived by air. For example, the progressive protection visa grant rate for asylum seekers from the top country of citizenship for boat arrivals (Afghanistan) has varied between about 80 and 95 per cent since 2009; while the final protection visa grant rate for those applying for asylum from the top country of citizenship for air arrivals (China) is usually only around 20 to 30 per cent.

  3. I’m not sure what there would be for an economist to study if Property Law, Contract Law, Labour law, Corporations Law, had no precedents.
    Without precedent then there is absolutely no certainty, property, or means of exchange that commerce could be based on.

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