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Washington Lawyer

Legal Spectator: The Sweet Science

From Washington Lawyer, March 2006

By Jacob A. Stein

spectator

“Induction,” one of them insisted.
“Deduction,” cried another.
“Analogy,” suggested the mildest of the party.
“Strict construction,” answered yet another.
I, too, became intoxicated by these legal reasoning words.
“Rationalization!” I chimed in, “original intention!” “deviation!” “interpretation!”
—Variations on a Theme
by Logan Pearsall Smith

In 1955 I had a Congressional Library stack pass. It gave me the right to wander as I pleased along the fabulous stacks of one of the great libraries of the world. In my strolls through the law division I noticed odd-looking law books that had the word science in the title. The Science and Logic of Pleading, The Science of Proof, The Science of Legal Rhetoric. These books were either privately printed or published by local publishers. They bore publication dates from the 1800s to the 1940s. The common thread running through the books was the wish by the author to elevate legal reasoning to the level of a mathematical science. Common law pleading, so it was said, was pure logic, Euclidean logic inevitably leading to ergo.

We do not see such books anymore. If math were a required law school subject, many of us would not be practicing law and the law schools would have fewer applicants.

At the January Senate Judiciary Committee hearing concerning a Supreme Court nominee, the nominee had to endure hours of pointed questions concerning his early beliefs and writings. Nevertheless the senators were kind enough to refrain from asking him the most difficult question of all: “Judge, would you take a few minutes and tell us just what legal reasoning is.”

If such a question were asked, there would have been a respectable period of silence as the witness collected his thoughts. Just what legal reasoning is defies a clear, unambiguous definition.

As I write I have before me my collection of books dealing with the subject. You will understand from the titles why the judge would have paused: The Nature of the Judicial Process by Benjamin N. Cardozo (1921); The Folklore of Capitalism by Thurmond Arnold (1937); Law and Other Things by Lord Macmillan (1939); The Mysterious Science of the Law by Daniel J. Boorstin (1941); Think Clearly by Moxley and Fife (1941); An Introduction to Legal Reasoning by Edward H. Levi (1948); The Nature of Legal Argument by O. C. Jensen (1957); Law as Large as Life: A Natural Law for Today and the Supreme Court as Its Prophet by Charles P. Curtis (1959); The Rules of Chaos by Stephen Vizinczey (1969); Law and Morality by Louis Blom-Cooper (1976); Tactics of Legal Reasoning by Pierre Schlag and David Skover (1986); Logic for Lawyers: A Guide to Clear Legal Thinking by Ruggero J. Aldisert (1989); The Problems of Jurisprudence by Richard A. Posner (1990); Unreason within Reason: Essays on the Outskirts of Rationality by A. C. Graham (1992); An Introduction to Law and Legal Reasoning by Steven J. Burton (1995); Imagining the Law: Common Law and the Foundations of the American Legal System by Norman F. Cantor (1997); and A Clearing in the Forest: Law, Life, and Mind by Steven L. Winter (2001).

Thurman Arnold, in The Folklore of Capitalism, says legal reasoning is a branch of literature and folklore. He corroborates his statement by citing Justice Cardozo. Thurman Arnold maintained this point of view while dean of a law school, a professor at Yale Law School, and an appellate judge.

Judge Ruggero J. Aldisert is defiant in asserting that legal reasoning follows closely a system of logic using induction, deduction, and analogy. In his book he points out the logical flaws in the opinions of his fellow judges, who really do not understand legal reasoning.

Edward Levi’s book, An Introduction to Legal Reasoning, is often referred to as a good statement of what the law is. He opens the discussion with restraint:

This is an attempt to describe generally the process of legal reasoning in the field of case law and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible.

In Law and Morality, edited by Louis Blom-Cooper, we read of the bitter fight between Oliver Wendell Holmes Jr.’s group asserting that law must be separated from morality and Lord Devlin’s group asserting that law rests on a stable and identifiable community sentiment of what is moral and what is right. Lord Devlin says that the morals of society are the standards of conduct of which the reasonable man approves. Common morality depends upon the collective wisdom or unwisdom of reasonable men.

O. C. Jensen, in The Nature of Legal Argument, says it is a mistake to assume, as many do, that judicial decisions are logically derived with mathematical, logical, and scientific precision. Jensen says that human nature often contradicts such precision. Therefore sensible legal reasoning partakes of common sense and a sense of equity lest the ends of justice are defeated.

Let us say to those who would like law to be a science that it is one of the sweet sciences, located somewhere between astrology and astrophysics and not too far from its sibling, political science.

 

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.