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. Which is apposite, given the recent decision on the baby Ferouz, in which it is decided that the baby, born prematurely in an Australian hospital on Australian soil, is in fact a maritime arrival. The relevant act was worded with a dichotomy of convenience (i.e. people who do not arrive in Australia by plane are deemed as maritime arrivals, for the purposes of the act), and that dichotomy is false in fact, if not in law. That’s the problem with policy framing, noone can possibly anticipate all parameters and their potential values, which means an act can really only be a version subject to future alteration. How to make the changes and when to make them is where the trouble starts.

  2. “The Law” exists in the same way that money exists; by invention, custom and agreement. They are social and nominal phenomena. They are what we say they are or maybe what the powerful people say they are (backed by some sort of monopoly on violence).

    Precedent-based applications of common law via the legal system are a way of minting new judgements that is rule-bound with all the shortcomings that implies but this kind of rule bound “game” is usually better than the chaos of whim and caprice. Minting money or judgements needs to be a complicated specialist process so that not just anybody can do it. I am being part ironic and part serious here. If money or judgements can be easily counterfeited people lose confidence in the system and you could be back to a condition of anarchy and violence: the law of the jungle.

    Please, don’t anybody take this as me defending recent morally bad judgements like the decision on baby Ferouz.

  3. Firstly:

    Separation Of Powers.

    If the politicians you elect make morally reprehensible but constitutionally supportable laws (e.g. re: “Marriage”) then the Courts must uphold and apply those laws. If you don’t like it, change your politicians for a bunch who will change that. Do not attack the judiciary or our legal system because you don’t like the ref’s decision.


    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.

    What is the example in Australian law most prominent in your mind? (Apart from our Tax Law – which is an abomination.)

    I’ve referred previously to one of Queensland’s, and I suggest Australia’s, most beautifully crafted pieces of legislation – the “Sale of Goods Act 1896” – which is so clear and concise in its drafting that it has lasted through the introduction of all sorts of technological and social changes.

    Well crafted law means what it says and reflects societal norms. Crap laws are drafted with a kind of legislative ‘gotcha’ in mind and almost always fail when subjected to judicial scrutiny to turn out the desired result – that includes when the legislation “wins” against a challenge.

  4. In legal philosophy, the existence of legal “gaps” is of course one of the stalking-horses of the debate between those, like Dworkin, who think that the law always provides a right answer, and those who think that often the law permits (or even requires) legal officials to use their own moral judgment.

    The disquiet that JQ identifies probably arises out of the fact that the law is, by its nature, meant to guide us–why else make law? If the legal answer is unclear, then the law seems to be failing by one of its own standards of efficacy.

    Of course, none of this means we should strive to make the law more and more precise. Only a handful of people think that we ought to eliminate vagueness (if it were even possible to do so). Vagueness in the law can be undesirable, but it can also be desirable in some situations.

  5. I cannot conceptualise a workable approach to the law that doesn’t frame the law as essentially heuristic.

  6. Second thought. Does not “precedent” mean following what has been shown to work? At least it can mean that. In other settings, we can see that the inventor of a tool that works sets a precedent. Others see that it works and copy him/her. Of course, there are bad precedents as well as good precedents. They have to be judged on a case by case basis.

    If anyone wants a better system than the current system of law he/she needs to able to propose it. This is true in other areas too. Many of us want a better system than capitalism and it is clear that the survival of the biosphere as a system that supports humans requires a better system than capitalism. There are plenty of proposals for how this would work.

  7. “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. ”

    A related problem is the nature of the Rights concept. While we operate on the basis Property Rights exist day to day and are a fixed set of rules their use has been so abused by capitalism as to bring them into disrepute. Gene ownership, vulture funds and trade mark parasites being current spectacular completely legal examples. But the creation of nonsense financial products and deeming value seems more pernicious.

    Separately there is their origins of the rights concept – the simple version of property rights given by environmental academics is that they were rationalized and legitimize by John Locke and property rights reflects possession by right of work done to create them. But as the whole Mabo and Wik stories seemed to show – this was more a convenient fiction developed to justify imperialism.

    Separately/earlier ownership rights seems to have been given by the sky God to the Pope to Kings to Barons to the rest of us – hence the vast Royal estates in Europe which continue to the present along with the rents they provide. But this rationale is also really only grounded in conquest and dodgy rationalizations of a hierarchy based on blood and slaughter.

    Now we have human rights and ecosystem rights – good things – but they seem now being legislated out of existence by the above dodgy property rights.

    The law of course fudges this mess via the mechanisms JQ describes. But with what and how do we reform this system without throwing out the baby with the bath water?

  8. Presumably, having had its philosophical foundations demolished, law, the courts, and most importantly, lawyers, have suddenly vanished in a puff of smoke?

    Of course in the field of mathematics, its been shown that for any sufficiently complex axiomatic system, there exist facts that cannot be proved using the axioms of mathematics. I presume the law is sufficiently complex…

  9. Well, law may have followed physics into quantum foam – before the ruling the decision can be anywhere in phase space, but with a much higher probability of being at certain points; and only when the judge hands down the verdict does the waveform collapse.

    The thing being that if a judge says in the judgement “This one could have gone either way’ they are very likely to be reversed on appeal; so once they have decided on their answer, they build a case for it and say “This is quite obviously the law, and always has been.”

  10. The common law “exists” in the same way that dictionaries exist.

    Dictionaries are prescriptive in that they attempt to set out and limit what words and phrases in a given language can mean. They are also descriptive, in that they function as records of how words and phrases have come to be used i.e. usage.

    The common law grew out of custom, which represents the intersection of practices and the constraints upon them, and the demands of lawmaking bodies — in the modern era, the legislatures.

    The law is a kind of hybrid — because however prescriptive legislatures seek to become, there are serious constraints mapping those rules to the dealings of those within their purview. That is after all why courts and quasi-judicial bodies exist — to interpret what law does exist, and the extent to which it relates to conduct which they may be called upon to examine.

    Like the idea of country or nation, the law is a kind of imaginary — an abstraction — with which flesh and blood human beings have to grapple in interpreting their burdens and their scope for action, alone, or in concert with others.

    The rules about evidence for example — when and in what forms it can be examined, and in what sense it is ever salient to a matter — are the product of centuries of jurisprudence — and these rules have been modied continuously over this period. Similarly tort law — relativing to negligence and nuisance — have been the product of continuous development as forms of property have emerged and fallen into desuetude.

    Precedent — in everyday language “how we do things around here” — is a very useful thing if one wants a non-arbitrary system. There is an expectation that like things will be dealt with in like manner. Radical departures from precedent open the door to uncertainty about what one may or may not do, and from an administrative point of view, open the way to maladministration and corruption.

    Of course a system imprisoned by precedent at some point in the past would arguably be just as arbitrary. Why should that moment have been definitive. It is well that those considering such matters can feel free to depart from precedent if there seem to be good grounds for doing so. Then the matter can be tested in appellate courts to see if the departures were warranted. Sometimes of course courts take the soft option of distinguishing cases in which the precedent was apparently set by distinguishing the facts of the case and arguing that the precedent was not germane. That too can be tested at the appellate level of course. Sometimes, new statute law is required because there is no way of correcting a precedent that has become an anomaly.

    I see the law as a dynamic thing — a lot like language. It’s both something that exists and something that is subject to challenge and therefore to both continuous and discontinuous improvement. Parts of it atrophy and die and other parts of it are enlarged. In a society in which inclusive governance was not a mere slogan but lived reality, the law would entirely reflect the equitable settling of the complex of burdens and benefits of the work product of the populace.

  11. @Fran Barlow

    Pretty much what I said but expanded upon more clearly. I said,

    ““The Law” exists in the same way that money exists; by invention, custom and agreement. They are social and nominal phenomena. …

    Precedent-based applications of common law via the legal system are a way of minting new judgements that is rule-bound, with all the shortcomings that that implies, but this kind of rule bound “game” is usually better than the chaos of whim and caprice.”

    Can J.Q. envisage another way we could “do” law? I can’t but that doesn’t mean there isn’t another way.

  12. @Fran Barlow

    Second response. A really important point I think is that there is excellent logical and philosophical underpinning for the concept of presumption of innocence (which not all jurisdictions have by the way).

    Most law takes the form of proscribing actions. For example “Thou shalt not kill.” In liberal jurisidictions at least, that which is not proscribed is by definition permissible. Another way to say this is that every thing is permissible except that which is proscribed. Thus all actions are legally “innocent” except for proscribed actions.

    It follows from this that innocence is general and guilt is particular. It then follows from this principle and other factors related to witnesses and evidence that innocence cannot be proven. A man cannot prove that he is innocent of ever beating of my wife even though he may well be innocent of that. Innocence is general and leaves in general no concrete evidence. The man cannot prove that in all the times he and his wife have been together and unobserved by third parties that he has not beaten her.

    Guilt under law is guilt for a committing a particular proscribed action or actions at a particular time or times.

    It was particularly revealing that during the WMD hoax, the West was demanding that Saddam prove he had no hidden nuclear weapons. But of course he could never prove that. No matter how many sites were searched or he revealed that had no hidden WM, the accusation could still be made that he had them hidden somewhere else or even hidden in convoys and being moved about.

    Given that many of our politicians have a law background, I believe it is clear they knew the fallacy of the line they were running. In fact, this is no doubt why they chose it. It’s a good way of invoking associations of guilt without proof. Subtly or not so subtly reverse the onus of proof after making the issue highly emotive and seemingly very high stake. Use and abuse the court of public opinion in way that proper courts and procedures cannot be used and abused.

    Tangential to this subject, but bearing on the character of certain politicians, I remember seeing some documented scenes video-taped in parliament at the time of the Tampa refugee affair. Alexander Downer was literally running through the halls of parliament in unholy glee to carry certain news to the inner cabinet and/or PM. It was clear that he knew they now had the incident they wanted: something that could be beaten up, exacerbated and made a pretext for what they really wanted to do, to use the boat people issue to wedge Labor. To Labor’s eternal disgrace they allowed themselves to be wedged and turned into Clayton’s Liberals on this matter.

    These people do anything to keep power, up to and including putting children and babies in concentration camps and denying citizenship to a baby born stateless in Australia on the technicality of a very bad law.

  13. @Megan

    I find that the full text of Stuart Chase’s The Tyranny Of Words can be found online. I’d like to quote the whole of Chapter XVII, ‘Round And Round With The Judges’, but that would be too much. Maybe I’ll reread it and find some particularly suitable passage. One thing I do remember, however, is that he does compare judges with baseball umpires, just as Megan compares judges with ‘the ref’, so I’ll say something about that on my own account.

    Judges are like sporting officials, but in what way? what are sporting officials like?

    Are referees, umpires, and other sporting officials uniformly flawless and incorruptible beings, who infallibly return results entirely and automatically determined by a combination of indisputably observed facts and the rules of the game? No, of course they aren’t.

    Sporting officials are sometimes biassed, sometimes bribed, blackmailed, or browbeaten. Even when honest and impartial, they can be incompetent in their functions, just as people can be in other jobs and roles. And just as in other jobs and roles, sporting officials of great integrity and competence are still humanly fallible and can still make errors, sometimes grave ones. In all these respects, judges are like them.

    In some instances sporting officials — and in some instances judges — make their decisions by majority in panels, a system which recognises that at least sometimes one alone is unreliable. In some instances sporting officials — and in some instances judges — can have their decisions altered or reversed by higher authority, also a systemic recognition that at least sometimes one alone is unreliable.

    Like sporting officials, and like human beings performing any role, judges deserve respect for good performance of their jobs, not because of the role they fill but because they are performing well. This respect should not carry over to bad performance.

    One other way in which judges are like sporting officials is that it is a condition of the game continuing that their rulings be abided by — not agreed with, not protected from criticism, not sanctified, but abided by. This, obviously, doesn’t prove that the game should continue.

  14. Which law are we talking about? The law of contract, in my view, is different to the law of tort in terms of the cases and the rules derived from them. Criminal law is more rigorous than both as it is far more extensively codified. It’s not sufficient to talk of the law as an undifferentiated body of knowledge just as it would be pointless to critique science unless it was to contrast it with religion.

  15. @J-D

    Interesting points. But I was not comparing “judges with the ‘ref'” in that sense.

    I was comparing the judiciary and legal system as a whole with ‘the ref’.

    The distinction is that I did not mean to use an analogy of a single, or panel of, judge/s as a referee in a sporting contest. Rather, the judicial system as a whole – courts, judges, lawyers, litigants, prosecutors and defendants – is the ‘ref’ which applies the existing rules to the circumstances before it.

    The legislators write those rules.

  16. PS: The legislators write those rules, EXCEPT FOR the “common law”. But as pointed out above, if they decide to they can overwrite the common law rules.

  17. I have reread the chapter I mentioned from Chase’s book, and there are several passages that would be highly relevant here. This is one:

    ‘Chancellor Kent of New York State, a great legal authority … once wrote: “I saw where justice lay, and the moral issue decided the court half of the time. I then sat down to search the authorities. … I might once in a while be embarrassed by a technical rule, but I almost always found principles suited to my view of the case.” The learned judge used his best judgement, came to a decision, and then ransacked the … books for authority … I would be willing to take his decision, if he were a good judge, without the ornament of citations. The decision constitutes the reality of legal machinery; the citations contribute to the magic.

    ‘A judge cites precedent, but must first decide which precedents to cite. There are many … In the AAA case in 1936, the Supreme Court majority picked one set of precedents and the minority another. The majority held that a bonus to a farmer was like paying a shoe-manufacturer to limit his output; the minority held that it was like giving a federal grant … for courses in agriculture. Precedents are based on identification … If no two peas are quite alike, what must we say of legal cases? Precedents also enable judges to put upon the shoulders of the past the responsibility for personal decisions they make in the present.’

  18. @patrickb
    Quite right. The different fields of law operate in different settings and on quite dissimilar precepts. Contract law, in my view, is intriguing for the way that it substituted itself for the English common law with the shift from feudalism to industrialism. This entailed a need for the codification of expectations in commercial life once the prior bonds of communal trust had been shattered by the transition fro one economy and society to another.

    My issue with the law is not the decisions made so much as the size of the bill that follows the decision. I thought that more lawyers would equate to competitive pricing. Another market failure. Sigh.

  19. Here’s the bit with the baseball umpire:

    ‘… Civilized living is impossible without machinery to settle disputes. If we accept this, and also accept … that legal decisions are always made by human beings, we can admire those who assume the difficult task of finding the facts and rendering decisions, and be grateful to them. But when we begin to think of them as priests, speaking not out of their own experience but as sounding boards for a Law which is beyond human frailty, then the necessary machinery is converted into a branch of demonology. It is as though an umpire in a baseball game was regarded not as a fellow citizen doing the best he could, but as an automaton receiving a signal from on high before he cried “Ball!” or “Strike!” The irritated fan … sometimes does not hesitate to throw a pop bottle at an umpire whose decisions appear to be biased or consistently out of line with the facts. I do not recommend throwing pop bottles at judges, but there is a lot in the … point of view. A … judge is just as human as a baseball umpire.

    ‘Early in its history, legal machinery became entangled with the ghosts of divine sanction, and judges … walked as solemnly as priests … The rules which the judges accumulated to help them in their work were made into the verbal corpus of the Law. To-day we have actual judges trying actual cases and dispensing decisions which are often fair and workable. Above and beyond we have the Law … and the … Court, which are spiritual symbols for the kind of world we would like to have. When actual judges become entangled with symbolic judges, and essential rules of legal procedure become entangled with the Law, then we may have … many unfair and inaccurate decisions calling loudly for a shower of mental pop bottles. … Law then becomes a heavy handicap … in [the] attempt to come to terms with the world outside.’

  20. For those interested, the decision in the “Baby Ferouz” case is now up on Austlii – under “Federal Circuit Court of Australia” and “Recent Decisions” it is “Plaintiff B9/2014 v Minister for Immigration”. It only runs to 62 paragraphs and isn’t difficult to read.

    As Donald Oats pointed out at #1, what did it was the criteria for becoming an “unauthorised maritime arrival”:

    (1) For the purposes of this Act, a person is an unauthorised maritime arrival if: ? (a) the person entered Australia by sea: …..
    (2) A person entered Australia by sea if: ? (a) the person entered the migration zone except on an aircraft that landed in the migration zone;

    Which begs the question, if “we” are really so worried about ‘illegals’, ‘queue jumpers’, ‘economic migrants’ etc…., then why specifically exclude aircraft arrivals?

  21. Hmmm, so what happens when some refugees charter a light plane and fly into our north? Probably some jet fighters out of Tindal would use them for target practice. No, wait, they are all in the Middle East! Our north is open! (This is all sarcasm, folks, directed at the authorities not at Megan.)

  22. @Ikonoclast

    I haven’t looked into it deeply, but it does appear that if “some refugees charter a light plane and fly into our north” and claim protection then under they Act their application would be valid.

    If they could get themselves to PNG or near to it, the distance is only a couple of hundred kilometres. If they were really game you could parachute them in. It would be hard to imagine the court deciding that plane + parachute is NOT entering by “aircraft”.

    It would be much easier if we just treated refugees humanely regardless of how they arrive. The Italians have rescued several hundred thousand refugees trying to cross the Mediterranean. Our treatment of refugees is a disgrace to us.

  23. @Megan

    I agree. (Except with the parachuting idea which was of course tongue in cheek.)

    It would be more much easier and much cheaper to treat refugees properly and humanely according to our internationl, humanitarian and UN obligations.

    This is the strange thing. It is actually cheaper to take the proper humane course of action. The concentration camp approach is very expensive.

    As Julian Burnside wrote:

    “… even if every boat person stayed on full Centrelink benefits for the whole time it took to decide their refugee status, it would cost the government only about $500 million a year, all of which would go into the economy of country towns. By contrast, the current system costs between $4 billion and $5 billion a year. We would save billions of dollars a year, and we would be doing good rather than harm.”

    Burnside envisages regional temporary residence while processing continues. See his article;
    “Asylum seekers can be managed with cheaper and more humane options” in the Age.

    Under the current system, multinational companies which specialise in running concentration camps get all these ill-spent billions and repatriate the profits overseas.

  24. @Ikonoclast

    The term “aircraft” isn’t defined in the Migration Act and neither is the term “landed”.

    In common language even a ship is said to have “landed” at the point it came ashore.

    There is nothing in the Migration Act that stipulates that the “aircraft” had to be flying when it enters Australia, just that the person must enter “on” the aircraft.

    The Civil Aviation Act might be of assistance, it defines:

    “aircraft” means any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface.

    You could float across in a seaplane and get a visa by the looks of it.

  25. 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.

  26. @ZM

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

  27. 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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