Is there a divergence in the approach to interpretation and coherence in moral and legal reasoning in the work of H. L. A. Hart and H. P. Grice?
The subject of legal reasoning appears to occupy the more *practical* end
of the spectrum of jurisprudential theorizing -- and as such, it should not interest Grice MUCH.
Surely, if anything matters in our attempts to understand the law, it matters how a judge should decide a case, and that we have an account which adequately explains and can perhaps be used to guide or justify the judge's activity.
The recent history of legal philosophy abounds with many and various attempts to address these issues and others which have been viewed as falling within the ambit of legal reasoning.
Is legal reasoning an activity which is exclusive to the adjudicative institutions of a legal system or is any reasoning about the law to be regarded as legal reasoning, no matter where or by whom it is undertaken?
Does legal reasoning take on a special character when it is undertaken in a court and by a judge?
Are there special methods or modes of reasoning which are unique to or at least distinctive of the law, or is legal reasoning just like reasoning in any other sphere of human activity, distinctive only in the subject matter to which it is applied?
Cf. Grice: do not multiply 'reasoning' beyond necessity.
This last question is particularly relevant to our present concern, as it is one task of this essay to discuss these two approaches concerning whether and to what extent interpretation and coherence have a special role to play in legal reasoning, because of the nature of law itself.
Surely, if anything matters in our attempts to understand the law, it matters how a judge should decide a case, and that we have an account which adequately explains and can perhaps be used to guide or justify the judge's activity.
The recent history of legal philosophy abounds with many and various attempts to address these issues and others which have been viewed as falling within the ambit of legal reasoning.
Is legal reasoning an activity which is exclusive to the adjudicative institutions of a legal system or is any reasoning about the law to be regarded as legal reasoning, no matter where or by whom it is undertaken?
Does legal reasoning take on a special character when it is undertaken in a court and by a judge?
Are there special methods or modes of reasoning which are unique to or at least distinctive of the law, or is legal reasoning just like reasoning in any other sphere of human activity, distinctive only in the subject matter to which it is applied?
Cf. Grice: do not multiply 'reasoning' beyond necessity.
This last question is particularly relevant to our present concern, as it is one task of this essay to discuss these two approaches concerning whether and to what extent interpretation and coherence have a special role to play in legal reasoning, because of the nature of law itself.
After a brief clarificatory consideration of the ambit of the term, ‘legal
reasoning’, the essay deals first with interpretation and then with coherence,
and discusses various views concerning these concepts and their relevance for
law.
Throughout, the discussion focuses upon the role which interpretation and coherence play within legal reasoning, and the reasons why these concepts are regarded by some as being distinctive of reasoning about the law.
Throughout, the discussion focuses upon the role which interpretation and coherence play within legal reasoning, and the reasons why these concepts are regarded by some as being distinctive of reasoning about the law.
This may seem like an easy question, what legal reasoning is, for surely legal reasoning is simply
(a) reasoning ABOUT the law, or
(b) reasoning about how a judge should decide a case.
On closer inspection, however, our ease may evaporate, for both of these formulations are ambiguous, at least according to some ways of thinking about the law.
Some legal philosophers regard the questions, ‘what is the law?’, and ‘how should judges decide cases?’ as distinct questions with distinct answers (e.g. Hart 1994).
That is to say, Hart's account of the law and his accounts of adjudication are not one and the same.
Hart contends that in settling a dispute which come before them, the remit of a judge is wider than merely trying to establish what the law is as regards the issues in the case at hand.
In adjudication, Hart claims, "extra-legal" or non-legal considerations can come into play, and a judge may have discretion to modify an existing law or to fill in a gap where an existing law is indeterminate, or 'defeasible' as Hart prefers, or implicatural as Grice does.
This being so, for some legal philosophers , the first formulation above, that legal reasoning is reasoning about the law, is ambiguous between:
(a) reasoning to establish the content of the law as it presently exists.
(b) reasoning from that content to the DECISION which a court should reach in a case which comes before it.
(a) reasoning ABOUT the law, or
(b) reasoning about how a judge should decide a case.
On closer inspection, however, our ease may evaporate, for both of these formulations are ambiguous, at least according to some ways of thinking about the law.
Some legal philosophers regard the questions, ‘what is the law?’, and ‘how should judges decide cases?’ as distinct questions with distinct answers (e.g. Hart 1994).
That is to say, Hart's account of the law and his accounts of adjudication are not one and the same.
Hart contends that in settling a dispute which come before them, the remit of a judge is wider than merely trying to establish what the law is as regards the issues in the case at hand.
In adjudication, Hart claims, "extra-legal" or non-legal considerations can come into play, and a judge may have discretion to modify an existing law or to fill in a gap where an existing law is indeterminate, or 'defeasible' as Hart prefers, or implicatural as Grice does.
This being so, for some legal philosophers , the first formulation above, that legal reasoning is reasoning about the law, is ambiguous between:
(a) reasoning to establish the content of the law as it presently exists.
(b) reasoning from that content to the DECISION which a court should reach in a case which comes before it.
Moreover, the second formulation of the ambit of legal reasoning given
above, i.e. that legal reasoning is about how a judge decides a case.
But this is also ambiguous on some approaches to legal theory.
This is so because we have a question:
How should a court decide a case, reasoning from the existing law applicable to it?
-- i.e. legal reasoning in the sense given in (b) above --
But the answer to this other question:
How should a court decide a case, all things considered?
may sometimes come apart.
A particular instance might be the kind of
situation which would delight Grice and which
could arise for a judge in a wicked legal
system where the law on some issue is
SO MORALLY ODIOUS that, all things considered,
the judge should not decide the case
according to the law at all, but rather
should refuse to apply the law
(see Hart 1958; Hart 1994, chapter 9, section 3).
This possibility is also noted by Dworkin in discussing whether the Nazis had a law.
But this is also ambiguous on some approaches to legal theory.
This is so because we have a question:
How should a court decide a case, reasoning from the existing law applicable to it?
-- i.e. legal reasoning in the sense given in (b) above --
But the answer to this other question:
How should a court decide a case, all things considered?
may sometimes come apart.
A particular instance might be the kind of
situation which would delight Grice and which
could arise for a judge in a wicked legal
system where the law on some issue is
SO MORALLY ODIOUS that, all things considered,
the judge should not decide the case
according to the law at all, but rather
should refuse to apply the law
(see Hart 1958; Hart 1994, chapter 9, section 3).
This possibility is also noted by Dworkin in discussing whether the Nazis had a law.
There are thus at least three things which legal philosophers
could mean by "legal reasoning":
(a) Legal reasoning is such reasoning that establishes the existing content of the law on a given issue.
(b) Legal reasoning is reasoning from the existing content of the law to the DECISION which a court reaches in a case involving that issue which comes before it.
(c) Legal reasoning is reasoning about the DECISION which a court reaches in a case, all things considered.
(a) Legal reasoning is such reasoning that establishes the existing content of the law on a given issue.
(b) Legal reasoning is reasoning from the existing content of the law to the DECISION which a court reaches in a case involving that issue which comes before it.
(c) Legal reasoning is reasoning about the DECISION which a court reaches in a case, all things considered.
It should be noted that some legal philosophers, most notably Dworkin, do not carve up the questions and issues on this topic
in the way outlined above.
For Dworkin, when a judge decides a case according to law, he does no more than ascertain the content of the law and APPLY the law to the facts of the case.
In other words, a judge never resorts to "extra-legal" or non-legal considerations in deciding a case according to law.
All the considerations which they are entitled to take into account are part of the law.
This means that, according to Dworkin, when a judges reasons about the law in sense (b), what he is doing amounts to no more nor less than reasoning about the law in sense (a), i.e. reasoning to establish the content of the law.
For Dworkin, when a judge decides a case according to law, he does no more than ascertain the content of the law and APPLY the law to the facts of the case.
In other words, a judge never resorts to "extra-legal" or non-legal considerations in deciding a case according to law.
All the considerations which they are entitled to take into account are part of the law.
This means that, according to Dworkin, when a judges reasons about the law in sense (b), what he is doing amounts to no more nor less than reasoning about the law in sense (a), i.e. reasoning to establish the content of the law.
This essay is concerned with legal reasoning in senses (a) and (b), and
with sense (b) in particular.
It should be noted that the essay does not directly address the different accounts of the nature and limits of law which are revealed by those varying views mentioned above regarding what it is that a judge does when he reasons about the law in sense (b).
Where such differences have a bearing upon issues pertaining to the role of interpretation and coherence in legal reasoning, they will be mentioned in the text.
For further discussion of the nature and limits of law, see various essays on the nature of law by H. L. A. Hart and the few excursions in legal philosophy by H. P. Grice.
It should be noted that the essay does not directly address the different accounts of the nature and limits of law which are revealed by those varying views mentioned above regarding what it is that a judge does when he reasons about the law in sense (b).
Where such differences have a bearing upon issues pertaining to the role of interpretation and coherence in legal reasoning, they will be mentioned in the text.
For further discussion of the nature and limits of law, see various essays on the nature of law by H. L. A. Hart and the few excursions in legal philosophy by H. P. Grice.
Recent interest in the role of interpretation in legal reasoning springs
from several sources.
For some, interpretation is where we should look in order to find the SOLUTION, or at least the only possible response, to the problem of linguistic indeterminacy in law which they perceive (in turn, renewed interest in the problems of linguistic indeterminacy in law seems to have stemmed at least in part from the resurgence in the last twenty years in scholarship addressing Wittgenstein's remarks on rule-following in the Philosophical Investigations (see e.g. Holtzman and Leich (eds.); Kripke; Baker and Hacker, 1984 and 1985), and the migration of these concerns from philosophy of language into philosophy of law (see e.g. Marmor 1992 and the revised edition of that work, Marmor 2005; Stone 1995; Smith 1990).
Certain aspects of this trend, most notably that of academic lawyers employing ill-digested Wittgenstein to dubious ends, are criticised by Bix.
According to this line of thinking, if words, and legal rules composed of words, have no intrinsic MEANING (but only Griceian utterer's meaning) and hence cannot, in and of themselves, constrain legal REASONING, it must be we — a reader, an addressee or an interpreter — who supplies such INDENDED meaning via the process of interpretation.
Stone criticises this understanding of the role of interpretation in legal reasoning, but notes its adoption by various legal philosophers.
In the case of other legal philosophers, interest in this topic stems from a wish to investigate the parallels and divergences between interpretation in law and interpretation of language and in literature.
The arrival on the jurisprudential scene of Dworkin's powerful new account of law as an interpretive concept, with concomitant implications for the activities of both the judge and the legal philosopher also did much to contribute to interest in the role of interpretation in legal reasoning.
Moreover, this account seemed to rouse Dworkin's legal positivist adversaries (such as H. L. A. Hart) into elaborating more fully upon something which he has always claimed has been seriously underdeveloped in their work, namely an account of the nature of adjudication, and of the role of interpretation within it/
Recent scholarship in constitutional theory concerning the distinctive challenges posed by the interpretation of constitutions has also helped fuel continuing interest in the topic of interpretation in legal reasoning (keyword: constitutionalism).
In some jurisdictions interest in interpretation in legal reasoning may have been sparked by changes in particular legal arrangements.
For example, as a result of the enactment of the Human Rights Acts in the United Kingdom with its section 3 duty to read and give effect to primary and sub-ordinate legislation in a way which is compatible with European Convention rights, or as a result of the doctrine of consistent interpretation or indirect effect developed by the European Court of Justice, requiring European Union Member States' courts to interpret domestic law so that it is consistent with EU law, so far as it is possible to do so.
For some, interpretation is where we should look in order to find the SOLUTION, or at least the only possible response, to the problem of linguistic indeterminacy in law which they perceive (in turn, renewed interest in the problems of linguistic indeterminacy in law seems to have stemmed at least in part from the resurgence in the last twenty years in scholarship addressing Wittgenstein's remarks on rule-following in the Philosophical Investigations (see e.g. Holtzman and Leich (eds.); Kripke; Baker and Hacker, 1984 and 1985), and the migration of these concerns from philosophy of language into philosophy of law (see e.g. Marmor 1992 and the revised edition of that work, Marmor 2005; Stone 1995; Smith 1990).
Certain aspects of this trend, most notably that of academic lawyers employing ill-digested Wittgenstein to dubious ends, are criticised by Bix.
According to this line of thinking, if words, and legal rules composed of words, have no intrinsic MEANING (but only Griceian utterer's meaning) and hence cannot, in and of themselves, constrain legal REASONING, it must be we — a reader, an addressee or an interpreter — who supplies such INDENDED meaning via the process of interpretation.
Stone criticises this understanding of the role of interpretation in legal reasoning, but notes its adoption by various legal philosophers.
In the case of other legal philosophers, interest in this topic stems from a wish to investigate the parallels and divergences between interpretation in law and interpretation of language and in literature.
The arrival on the jurisprudential scene of Dworkin's powerful new account of law as an interpretive concept, with concomitant implications for the activities of both the judge and the legal philosopher also did much to contribute to interest in the role of interpretation in legal reasoning.
Moreover, this account seemed to rouse Dworkin's legal positivist adversaries (such as H. L. A. Hart) into elaborating more fully upon something which he has always claimed has been seriously underdeveloped in their work, namely an account of the nature of adjudication, and of the role of interpretation within it/
Recent scholarship in constitutional theory concerning the distinctive challenges posed by the interpretation of constitutions has also helped fuel continuing interest in the topic of interpretation in legal reasoning (keyword: constitutionalism).
In some jurisdictions interest in interpretation in legal reasoning may have been sparked by changes in particular legal arrangements.
For example, as a result of the enactment of the Human Rights Acts in the United Kingdom with its section 3 duty to read and give effect to primary and sub-ordinate legislation in a way which is compatible with European Convention rights, or as a result of the doctrine of consistent interpretation or indirect effect developed by the European Court of Justice, requiring European Union Member States' courts to interpret domestic law so that it is consistent with EU law, so far as it is possible to do so.
As might be expected, as a result of these different (although often
inter-twining) intellectual backgrounds and sources of interest in
interpretation, legal philosophers approach this subject with very different
questions and concerns to which they give concomitantly different answers.
For all this, however, a surprising number of legal philosophers agree — at least at an abstract level — about one central characteristic of interpretation, namely that "interpretation" is "a Janus-faced concept", encompassing both a backward-looking conserving component, and a forward-looking creative one.
In other words, an interpretation of something is an interpretation of something: it presupposes that there is a something, or an original, there to be interpreted, and to which any VALID interpretation must be faithful to some extent, thus differentiating interpretation from pure invention.
But it is also an interpretation of something, i.e. an attempt not merely to reproduce but to make something of or bring something out of an original.
For all this, however, a surprising number of legal philosophers agree — at least at an abstract level — about one central characteristic of interpretation, namely that "interpretation" is "a Janus-faced concept", encompassing both a backward-looking conserving component, and a forward-looking creative one.
In other words, an interpretation of something is an interpretation of something: it presupposes that there is a something, or an original, there to be interpreted, and to which any VALID interpretation must be faithful to some extent, thus differentiating interpretation from pure invention.
But it is also an interpretation of something, i.e. an attempt not merely to reproduce but to make something of or bring something out of an original.
Much jurisprudential philosophizing on interpretation in legal reasoning is
concerned with how to strike the right balance between the conserving and
creative elements in interpretation, and with the constraints which
should be operative upon judges as they undertake this balancing act.
Some legal philosophers claim that such concerns about how one ought to INTERPRET THE LAW indicate that it is part of the way that we think about this practice that we regard rival interpretations as subject to OBJECTIVE valuation as good or bad, better or worse, correct or incorrect.
On this view, characterisations of interpretation which attempt to impugn the OBJECTVITY of such evaluations are to be understood as revisionist accounts which attempt to persuade us that all is not as it appears to be with our practice of judging an interpretation to be good or bad, better or worse, correct or incorrect as we currently understand it.
Some legal philosophers claim that such concerns about how one ought to INTERPRET THE LAW indicate that it is part of the way that we think about this practice that we regard rival interpretations as subject to OBJECTIVE valuation as good or bad, better or worse, correct or incorrect.
On this view, characterisations of interpretation which attempt to impugn the OBJECTVITY of such evaluations are to be understood as revisionist accounts which attempt to persuade us that all is not as it appears to be with our practice of judging an interpretation to be good or bad, better or worse, correct or incorrect as we currently understand it.
It is important to consider how interpretation fits into the discussion of the ambit of the term legal
reasoning.
The key to this issue lies in interpretation's dualistic nature, i.e. that it has both a backward-looking conserving aspect and a forward-looking creative one.
This dualism of INTERPRETATION would seem to indicate that in INTERPRETING THE LAW , a judge both seeks to capture and be faithful to the content of the law as the law currently exists, and to supplement, modify, or bring out something NEW, ad hoc, in the law, in the course of reasoning from the content of the law to a DECISION in a particular case.
In turn, this would seem to indicate that interpretation, because of its dualistic nature, has a role to play in both legal reasoning in sense (a) -- i.e. reasoning to establish the existing content of the law on a given issue -- and legal reasoning in sense (b), namely reasoning from the existing content of the law to the DECISION which a court reaches in a case involving that issue which comes before it.
The key to this issue lies in interpretation's dualistic nature, i.e. that it has both a backward-looking conserving aspect and a forward-looking creative one.
This dualism of INTERPRETATION would seem to indicate that in INTERPRETING THE LAW , a judge both seeks to capture and be faithful to the content of the law as the law currently exists, and to supplement, modify, or bring out something NEW, ad hoc, in the law, in the course of reasoning from the content of the law to a DECISION in a particular case.
In turn, this would seem to indicate that interpretation, because of its dualistic nature, has a role to play in both legal reasoning in sense (a) -- i.e. reasoning to establish the existing content of the law on a given issue -- and legal reasoning in sense (b), namely reasoning from the existing content of the law to the DECISION which a court reaches in a case involving that issue which comes before it.
One legal philosopher who adopts exactly this approach, and so views
interpretation in legal reasoning as straddling the divide between identifying the
existing law, and developing and modifying the law, is Raz.
According to Raz, the fact that interpretation has a role to play in both of these different activities assists in explaining why we do NOT find a two-stage, or clearly bifurcated, approach to legal reasoning in a judicial decision.
A judges do not first of all engage in legal reasoning in sense (a), having recourse only to legal materials, and then, having established what the existing law is and determined how far it can take them in resolving the instant case, then move on to a separate stage of legal reasoning in sense (b) which requires them to look to allegedly "extra-legal" material in order to complete the job, because much of their reasoning is interpretive and interpretation straddles the divide between legal reasoning understood in these two different ways.
This point may assist the legal philosopher in defusing some of the criticisms which have been levelled at the legal positivist approach to legal reasoning such as that positivism's account is phenomenologically inaccurate because when we examine cases, we do not find two distinct stages to judicial reasoning, one to establish whether any legal rules bear upon the problem at hand, and one wherein a judge effectively legislates to fill in the gap when a legal rule runs out.
This ‘straddling the divide’ approach may in fact seem to undermine the very ideas that there is a tenable distinction to be made between these two approaches or definitions of legal reasoning, and that there are gaps in the law.
Interpretation appears to blur or even erase the line between the separate law-finding role and a law-creating role which many legal positivists ascribe to a judge, and the fact that a court always seems to be able to decide a case by interpreting the law may also seem to cast doubt on the idea that the law is incomplete, and hence that a judge sometimes has to reach outside of the law in the adjudication process.
Interest in the pervasiveness of interpretation in legal reasoning, and in "the Janus-faced nature of interpretation" may thus form part of the background which has led legal philosophers like Dworkin to deny that the distinction between identifying existing law, and developing and changing the law, as understood by certain legal positivists, is a tenable or coherent one.
That interpretation appears to operate at every stage in the legal reasoning process may also have influenced Dworkin's denial that there are gaps in the law, and his counter-claim, contra H. L. A. Hart, that everything which a judge is entitled to rely on in deciding a case is already part of the law.
According to Raz, the fact that interpretation has a role to play in both of these different activities assists in explaining why we do NOT find a two-stage, or clearly bifurcated, approach to legal reasoning in a judicial decision.
A judges do not first of all engage in legal reasoning in sense (a), having recourse only to legal materials, and then, having established what the existing law is and determined how far it can take them in resolving the instant case, then move on to a separate stage of legal reasoning in sense (b) which requires them to look to allegedly "extra-legal" material in order to complete the job, because much of their reasoning is interpretive and interpretation straddles the divide between legal reasoning understood in these two different ways.
This point may assist the legal philosopher in defusing some of the criticisms which have been levelled at the legal positivist approach to legal reasoning such as that positivism's account is phenomenologically inaccurate because when we examine cases, we do not find two distinct stages to judicial reasoning, one to establish whether any legal rules bear upon the problem at hand, and one wherein a judge effectively legislates to fill in the gap when a legal rule runs out.
This ‘straddling the divide’ approach may in fact seem to undermine the very ideas that there is a tenable distinction to be made between these two approaches or definitions of legal reasoning, and that there are gaps in the law.
Interpretation appears to blur or even erase the line between the separate law-finding role and a law-creating role which many legal positivists ascribe to a judge, and the fact that a court always seems to be able to decide a case by interpreting the law may also seem to cast doubt on the idea that the law is incomplete, and hence that a judge sometimes has to reach outside of the law in the adjudication process.
Interest in the pervasiveness of interpretation in legal reasoning, and in "the Janus-faced nature of interpretation" may thus form part of the background which has led legal philosophers like Dworkin to deny that the distinction between identifying existing law, and developing and changing the law, as understood by certain legal positivists, is a tenable or coherent one.
That interpretation appears to operate at every stage in the legal reasoning process may also have influenced Dworkin's denial that there are gaps in the law, and his counter-claim, contra H. L. A. Hart, that everything which a judge is entitled to rely on in deciding a case is already part of the law.
Legal philosophers disagree about the proper characterisation of many aspects
of the schematic account of the interpretive process.
Accounts of the role of interpretation in legal reasoning differ regarding the following matters:
Accounts of the role of interpretation in legal reasoning differ regarding the following matters:
What exactly is the original or object which is being interpreted in
the case of law:
the law as a whole?
certain aspects of legal practice?
statutes?
judicial decisions?
authoritative legal decisions?; legal texts?
Some claim that the primary objects of interpretation are the decisions of legal authorities.
Those who claim this reach this conclusion as a result of his view that law is an INSTITUTIONALISED normative system, wherein the institutions concerned operate by issuing purportedly authoritative directives concerning what ought to be done.
The central role which AUTHORITY plays in law means that when we come to interpret the law, what we are primarily seeking to do is to establish the existence and meaning of any purportedly AUTHORITATIVE directives of legal institutions, and it is, therefore, the decisions of those institutions which constitute the originals to be interpreted in the case of law.
This stance can be contrasted with that which holds a process of ‘constructive interpretation’, which plays such a central role and involves interpreters, imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.
Moreover, in the case of legal interpretation, some appears to settle for the argumentative social practice of law as the original to be interpreted.
This being so, the object of legal interpretation appears to be broader.
We may just interpret in order to establish whether any AUTHORITATIVE legal directives are currently in force and bear upon the legal issue at hand, and so we should look to the decision establishing those directives in getting the interpretive process off the ground.
But interpretation may have a more abstract and global feel to it, in the sense that it is the social practice of law as a whole, including the entire legal history of a given jurisdiction, as well as any data speaking to the point or purpose of legal practice in general, which constitutes the original to be interpreted.
the law as a whole?
certain aspects of legal practice?
statutes?
judicial decisions?
authoritative legal decisions?; legal texts?
Some claim that the primary objects of interpretation are the decisions of legal authorities.
Those who claim this reach this conclusion as a result of his view that law is an INSTITUTIONALISED normative system, wherein the institutions concerned operate by issuing purportedly authoritative directives concerning what ought to be done.
The central role which AUTHORITY plays in law means that when we come to interpret the law, what we are primarily seeking to do is to establish the existence and meaning of any purportedly AUTHORITATIVE directives of legal institutions, and it is, therefore, the decisions of those institutions which constitute the originals to be interpreted in the case of law.
This stance can be contrasted with that which holds a process of ‘constructive interpretation’, which plays such a central role and involves interpreters, imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.
Moreover, in the case of legal interpretation, some appears to settle for the argumentative social practice of law as the original to be interpreted.
This being so, the object of legal interpretation appears to be broader.
We may just interpret in order to establish whether any AUTHORITATIVE legal directives are currently in force and bear upon the legal issue at hand, and so we should look to the decision establishing those directives in getting the interpretive process off the ground.
But interpretation may have a more abstract and global feel to it, in the sense that it is the social practice of law as a whole, including the entire legal history of a given jurisdiction, as well as any data speaking to the point or purpose of legal practice in general, which constitutes the original to be interpreted.
How much emphasis is to be placed on the conserving vs. the creative elements in interpretation?
At the conserving extreme, we find accounts such as originalism in the constitutional interpretation which claims that in interpreting a particular provision of the constitution, a judge should seek to establish the way in which the provision was originally understood, alla Grice by those who ratified it (in terms of the intentions of those who ratified it)
As close as possible conformity with those original intentions thus furnishes us with the standard of correctness in constitutional interpretation on this approach.
Adherence to originalism in constitutional interpretation is necessary to ensure that the judiciary confines itself to its proper sphere of authority, thus preserving the separation of powers and structure of government in the form in which the founders intended.
The topic of originalism in Constitutional Interpretation is a difficult one, and some have argued that fidelity to the constitution's text does not exhaust constitutional interpretation, and that the search for constitutional integrity might require interpreters to depart from the best interpretation of the constitutional text considered apart from the history of its enforcement.
Other accounts are at the other end of the spectrum.
They reject originalism and give far more weight to the role of innovation in legal interpretation.
Indeed, Levinson contends that all US constitutional interpretation is necessarily creative, due to radical and pervasive linguistic indeterminacy in the law.
If such approaches wish to claim that there are standards by which we can judge interpretations to be better or worse, correct or incorrect, then they must find such standards other than in the conserving aspect of interpretation, as the requirement that one be faithful to the meaning of an original seems to be obliterated on such views.
As was noted at the end of subsection 2.2 above, some such views may wish to claim that our practice of accounting interpretations as good or bad, correct or incorrect is incoherent. One other possibility, however, is that the notion of ‘correctness’ can be salvaged by being pegged to the communal reactions of the relevant interpretive community; our interpretations are the right ones when they accord sufficiently with those of our similarly situated fellow interpreters (see e.g. Kripke 1982 and those works discussed in point (3) below).
Some commentators have poured scorn on the idea that this sort of approach could yield standards of correctness worthy of the name. See for example Baker and Hacker 1984, who contend that Kripke's position amounts to the view that, ‘an unjustified stab in the dark is unobjectionable as long as it is made in good company.’ (Baker and Hacker 1982, 81–82).
Following on from one point above: how big a role does the requirement
that judges must be faithful to an original play in constraining legal
interpretation, and are there any additional constraints which supplement the
constraints generated by the need to be faithful to an original which guide
judges as they interpret the law?
For example, for Owen Fiss (1982), ‘disciplining rules’ in the form of those standards which are constitutive of the profession of judging supply constraints upon judicial interpretation which supplement the rules of language which already constrain all language users in their attempts to understand texts.
According to Fiss, then, judges are constrained both by the need to be faithful to the original legal text which they are interpreting, and by supplementary norms of interpretation which are constitutive of the judicial role.
Fiss lists the requirement that judges must always consult history when interpreting the law as an example of a ‘disciplining rule’.
Fiss' view is criticised by Stanley Fish, who contends that Fiss' ‘disciplining rules’ would themselves require interpretation in order for judges to know what they mean and require of them, and hence cannot supply constraints upon judicial interpretation.
Fish's contention that all potential candidates which might constrain interpretation are themselves susceptible to being interpreted in a variety of ways results in his claiming that texts or originals cannot constrain judges at all in the way in which is commonly supposed, as texts do not have meanings in advance of particular interpretations of them.
This seemingly radical indeterminacy is deceptive, however, for although Fish removes the constraints on interpretation provided by legal texts or supplementary norms of the judicial profession, he replaces them with the conditioning and training processes of ‘interpretive communities’, which ensure that, ‘…readers are already and always thinking within the norms, standards, criteria of evidence, purposes and goals of a shared enterprise’, such that, ‘the meanings available to them have been preselected by their professional training.’ (Fish 1989, 133).
For example, for Owen Fiss (1982), ‘disciplining rules’ in the form of those standards which are constitutive of the profession of judging supply constraints upon judicial interpretation which supplement the rules of language which already constrain all language users in their attempts to understand texts.
According to Fiss, then, judges are constrained both by the need to be faithful to the original legal text which they are interpreting, and by supplementary norms of interpretation which are constitutive of the judicial role.
Fiss lists the requirement that judges must always consult history when interpreting the law as an example of a ‘disciplining rule’.
Fiss' view is criticised by Stanley Fish, who contends that Fiss' ‘disciplining rules’ would themselves require interpretation in order for judges to know what they mean and require of them, and hence cannot supply constraints upon judicial interpretation.
Fish's contention that all potential candidates which might constrain interpretation are themselves susceptible to being interpreted in a variety of ways results in his claiming that texts or originals cannot constrain judges at all in the way in which is commonly supposed, as texts do not have meanings in advance of particular interpretations of them.
This seemingly radical indeterminacy is deceptive, however, for although Fish removes the constraints on interpretation provided by legal texts or supplementary norms of the judicial profession, he replaces them with the conditioning and training processes of ‘interpretive communities’, which ensure that, ‘…readers are already and always thinking within the norms, standards, criteria of evidence, purposes and goals of a shared enterprise’, such that, ‘the meanings available to them have been preselected by their professional training.’ (Fish 1989, 133).
Is it possible to have a general theory of
interpretation?
Raz 1996a rejects the possibility of two types of general theories of interpretation: ‘operational’ or recipe-like theories which are designed to guide judges to the right decision in a case which comes before them, and theories which, although they may not aim to guide judges to the correct decision, nonetheless claim to provide us with criteria via which to distinguish good interpretations from bad, and so enable us to check the correctness of decisions which have been made.
According to Raz, theories of the former kind are impossible because morality (to which recourse must be had as regards the innovative aspect of legal interpretation) is not susceptible to explanation via ‘operational’ theories, i.e., ‘theories which would enable a person whose moral understanding and judgement are suspect to come to the right moral conclusions regarding situations he may face by consulting the theory.’ (Raz 1996a, p21.
In this he follows similar claims made by several contemporary moral philosophers, e.g. B. A. O. Williams 1985; Dancy 1993 and H. P. Grice, "The conception of value" and "Aspects of reason" -- The Kant Lectures).
Moreover, claims Raz, theories which purport to tell us how to differentiate good interpretations from bad are also impossible because, by its very nature, innovation defies generalisation, such that it is futile to attempt to construct a general theory which differentiates good interpretations from bad as regards the forward-looking aspect of interpretation.
It should be noted that (as is apparent from the discussions in this entry as a whole), Raz does believe that it is possible to have an account which explains certain aspects of the nature and role of interpretation in legal reasoning; what he doubts is that it is possible to have a certain kind of account of interpretation, namely an account in the form of a theory which purports either to operate as a recipe for concocting good interpretations, or to provide us with a general account of how to evaluate interpretations as good or bad, right or wrong (on this point see also Raz 2009 essay 12 section IX).
Raz 1996a rejects the possibility of two types of general theories of interpretation: ‘operational’ or recipe-like theories which are designed to guide judges to the right decision in a case which comes before them, and theories which, although they may not aim to guide judges to the correct decision, nonetheless claim to provide us with criteria via which to distinguish good interpretations from bad, and so enable us to check the correctness of decisions which have been made.
According to Raz, theories of the former kind are impossible because morality (to which recourse must be had as regards the innovative aspect of legal interpretation) is not susceptible to explanation via ‘operational’ theories, i.e., ‘theories which would enable a person whose moral understanding and judgement are suspect to come to the right moral conclusions regarding situations he may face by consulting the theory.’ (Raz 1996a, p21.
In this he follows similar claims made by several contemporary moral philosophers, e.g. B. A. O. Williams 1985; Dancy 1993 and H. P. Grice, "The conception of value" and "Aspects of reason" -- The Kant Lectures).
Moreover, claims Raz, theories which purport to tell us how to differentiate good interpretations from bad are also impossible because, by its very nature, innovation defies generalisation, such that it is futile to attempt to construct a general theory which differentiates good interpretations from bad as regards the forward-looking aspect of interpretation.
It should be noted that (as is apparent from the discussions in this entry as a whole), Raz does believe that it is possible to have an account which explains certain aspects of the nature and role of interpretation in legal reasoning; what he doubts is that it is possible to have a certain kind of account of interpretation, namely an account in the form of a theory which purports either to operate as a recipe for concocting good interpretations, or to provide us with a general account of how to evaluate interpretations as good or bad, right or wrong (on this point see also Raz 2009 essay 12 section IX).
Dworkin, by contrast, does purport to offer judges a general theory
of legal interpretation which they can use to guide their interpretive
activities, and which, if followed correctly, will lead them to the ‘one right
answer’ in the case before them (on Dworkin's ‘one right answer’ thesis, see
further point (7) below).
For Dworkin, it is the aim of all legal interpretation to ‘constructively interpret’ the social practice of law, by imposing purpose upon it such as, ‘to make of it the best possible example of the form or genre to which it is taken to belong.’ (Dworkin 1986, p52).
The more specific theory which he believes that judges should follow in fulfilling this task—‘law as integrity’—‘instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were created by a single author—the community personified’ (see subsections 2.5 and 3.4, and the entry interpretivist theories of law).
It should be noted, however, that while Dworkin's general theory of interpretation is designed to assist in guiding judges to the one right answer in a case which comes before them, he claims that it is not recipe-like in the sense of providing judges with a detailed step by step programme for correct judicial decision-making: ‘I have not devised an algorithm for the courtroom. No electronic magician could design from my arguments a computer program that would supply a verdict everyone would accept once the facts of the case and the text of all past statutes and judicial decisions were put at the computer's disposal’ (Dworkin 1986, p. 412).
For Dworkin, it is the aim of all legal interpretation to ‘constructively interpret’ the social practice of law, by imposing purpose upon it such as, ‘to make of it the best possible example of the form or genre to which it is taken to belong.’ (Dworkin 1986, p52).
The more specific theory which he believes that judges should follow in fulfilling this task—‘law as integrity’—‘instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were created by a single author—the community personified’ (see subsections 2.5 and 3.4, and the entry interpretivist theories of law).
It should be noted, however, that while Dworkin's general theory of interpretation is designed to assist in guiding judges to the one right answer in a case which comes before them, he claims that it is not recipe-like in the sense of providing judges with a detailed step by step programme for correct judicial decision-making: ‘I have not devised an algorithm for the courtroom. No electronic magician could design from my arguments a computer program that would supply a verdict everyone would accept once the facts of the case and the text of all past statutes and judicial decisions were put at the computer's disposal’ (Dworkin 1986, p. 412).
Dworkin's "pro-theory" stance has attracted criticism from a variety of
quarters.
Fish (1989, essays 4, 5 and 16) claims that ‘law as integrity’ is not a theory which judges can use to guide their interpretive activities because it is a strategy which they cannot help but put into practice, and to which they are always and already committed simply in virtue of their membership in the judicial interpretive community. Sunstein 1996 also warns against the kind of ‘high-level theories’ which Dworkin instructs judges to construct and follow in deciding cases. Sunstein is suspicious of the value of such theorising on the grounds that, ‘it takes too much time and may be unnecessary; because it may go wrong insofar as it operates without close reference to actual cases; because it often prevents people from getting along at all; and because general theorizing can seem or be disrespectful insofar as it forces people to contend, unnecessarily, over their deepest and most defining moral commitments.’ (Sunstein 1996, p50).
Instead, Sunstein advocates a special role for ‘incompletely theorized agreements’ in judicial decision-making. Such agreements can occur where judges agree on the outcomes of individual cases even though they disagree on which general theory best accounts for those outcomes, or agree on a general principle, but not on what that principle requires in particular cases, or agree on a ‘mid-level’ principle (see Sunstein 1996, p36) but disagree about both the general theory underlying it and particular cases falling under it.
Sunstein regards incompletely theorised agreements as vital to legal reasoning, because they allow the diverse individuals who constitute the judiciary to agree on outcomes against the background of certain institutional constraints such as that they have, ‘a weak democratic pedigree and limited fact-finding capacity’ (Sunstein 1996, p6), must make many decisions, make them fairly quickly, show adequate respect, to litigants, and to each other, and avoid error insofar as is possible. Sunstein presents a strong case for the role of incompletely theorised agreements in law in general, pointing out that the institution of such agreements is one of the most important social functions of legal rules, as rules are capable of allowing agreement in the face of disagreement, in the sense that sometimes judges can agree on outcomes to cases governed by a rule whilst disagreeing about the rule's justification (on this important function of legal rules see also Raz 2001).
Fish (1989, essays 4, 5 and 16) claims that ‘law as integrity’ is not a theory which judges can use to guide their interpretive activities because it is a strategy which they cannot help but put into practice, and to which they are always and already committed simply in virtue of their membership in the judicial interpretive community. Sunstein 1996 also warns against the kind of ‘high-level theories’ which Dworkin instructs judges to construct and follow in deciding cases. Sunstein is suspicious of the value of such theorising on the grounds that, ‘it takes too much time and may be unnecessary; because it may go wrong insofar as it operates without close reference to actual cases; because it often prevents people from getting along at all; and because general theorizing can seem or be disrespectful insofar as it forces people to contend, unnecessarily, over their deepest and most defining moral commitments.’ (Sunstein 1996, p50).
Instead, Sunstein advocates a special role for ‘incompletely theorized agreements’ in judicial decision-making. Such agreements can occur where judges agree on the outcomes of individual cases even though they disagree on which general theory best accounts for those outcomes, or agree on a general principle, but not on what that principle requires in particular cases, or agree on a ‘mid-level’ principle (see Sunstein 1996, p36) but disagree about both the general theory underlying it and particular cases falling under it.
Sunstein regards incompletely theorised agreements as vital to legal reasoning, because they allow the diverse individuals who constitute the judiciary to agree on outcomes against the background of certain institutional constraints such as that they have, ‘a weak democratic pedigree and limited fact-finding capacity’ (Sunstein 1996, p6), must make many decisions, make them fairly quickly, show adequate respect, to litigants, and to each other, and avoid error insofar as is possible. Sunstein presents a strong case for the role of incompletely theorised agreements in law in general, pointing out that the institution of such agreements is one of the most important social functions of legal rules, as rules are capable of allowing agreement in the face of disagreement, in the sense that sometimes judges can agree on outcomes to cases governed by a rule whilst disagreeing about the rule's justification (on this important function of legal rules see also Raz 2001).
Whether or not interpretation is always of something which to some
extent already has meaning, or whether interpretation is the fundamental
determinant of the meaning of linguistic expressions in, for example, legal
texts.
Marmor 1992, 2005 and Stone 1995 deny that interpretation is the fundamental determinant of the meaning of linguistic expressions and contend that, following a certain reading of Wittgenstein's remarks on rule-following (namely the kind of reading offered by McDowell 1984 and Baker and Hacker 1985), it must be possible for us to grasp the meaning of, for example, a legal rule, in a way which does not require recourse to interpretation.
Cornell 1992 and Fish 1989 deny this, and contend that interpretation is all-pervasive, and is the fundamental and inescapable determinant of meaning, ‘all the way down’, in all cases.
In the minds of some legal theorists at least, this point has strong links with with the issue of linguistic indeterminacy in law (see e.g. Fish 1989; Cornell 1992).
Those theorists who contend that interpretation is the fundamental determinant of the meaning of linguistic expressions often claim that such interpretation is necessary because legal rules expressed in language do not have determinate meanings and hence cannot determine their own correct application.
In John McDowell's terminology, those rules, by themselves, cannot have ‘normative reach.’ (McDowell 1984 and 1992).
This being the case, so this line of thinking goes, interpretation is required in order to bridge the gap between the inert legal rule and the situations to which it applies.
For these theorists, the pertinent issue then becomes.
How do we know that one interpretation rather than another is in accordance with the rule, if the rule itself cannot determine its own correct application?
As Wittgenstein notes in his remarks on rule-following, it seems that:
"Whatever I do is, on some interpretation, in accord with the rule", such that we can, "give one interpretation after another; as if each one contented us at least for a moment, until we thought of yet another standing behind it."
(Wittgenstein 1967, §198 and §201 respectively).
Some theorists, e.g. Fish 1989, seem to embrace this potential infinite regress of alternative interpretations of rules (see also point (3) above) and attempt to avoid the radical linguistic indeterminacy which it seems to entail by replacing the standards of correctness demarcated by rules with the conditioning and training processes of interpretive communities.
For theorists like Marmor (1992 & 2005) and Stone (1995) who deny that interpretation is the fundamental determinant of the meaning of linguistic expressions, the Wittgensteinian challenge is seen as a kind of "reductio ad absurdum" which indicates that we have gone astray in our understanding of how rules operate.
Such theorists seek to avoid linguistic indeterminacy, and reject interpretation as the fundamental determinant of meaning by denying that there is a gap which needs to be bridged between grasping a rule and understanding those actions which it requires.
As was noted above, this denial usually proceeds via a non-sceptical reading of Wittgenstein's remarks on rule-following, along the lines of that offered by McDowell 1984 and Baker and Hacker 1985.
Marmor 1992, 2005 and Stone 1995 deny that interpretation is the fundamental determinant of the meaning of linguistic expressions and contend that, following a certain reading of Wittgenstein's remarks on rule-following (namely the kind of reading offered by McDowell 1984 and Baker and Hacker 1985), it must be possible for us to grasp the meaning of, for example, a legal rule, in a way which does not require recourse to interpretation.
Cornell 1992 and Fish 1989 deny this, and contend that interpretation is all-pervasive, and is the fundamental and inescapable determinant of meaning, ‘all the way down’, in all cases.
In the minds of some legal theorists at least, this point has strong links with with the issue of linguistic indeterminacy in law (see e.g. Fish 1989; Cornell 1992).
Those theorists who contend that interpretation is the fundamental determinant of the meaning of linguistic expressions often claim that such interpretation is necessary because legal rules expressed in language do not have determinate meanings and hence cannot determine their own correct application.
In John McDowell's terminology, those rules, by themselves, cannot have ‘normative reach.’ (McDowell 1984 and 1992).
This being the case, so this line of thinking goes, interpretation is required in order to bridge the gap between the inert legal rule and the situations to which it applies.
For these theorists, the pertinent issue then becomes.
How do we know that one interpretation rather than another is in accordance with the rule, if the rule itself cannot determine its own correct application?
As Wittgenstein notes in his remarks on rule-following, it seems that:
"Whatever I do is, on some interpretation, in accord with the rule", such that we can, "give one interpretation after another; as if each one contented us at least for a moment, until we thought of yet another standing behind it."
(Wittgenstein 1967, §198 and §201 respectively).
Some theorists, e.g. Fish 1989, seem to embrace this potential infinite regress of alternative interpretations of rules (see also point (3) above) and attempt to avoid the radical linguistic indeterminacy which it seems to entail by replacing the standards of correctness demarcated by rules with the conditioning and training processes of interpretive communities.
For theorists like Marmor (1992 & 2005) and Stone (1995) who deny that interpretation is the fundamental determinant of the meaning of linguistic expressions, the Wittgensteinian challenge is seen as a kind of "reductio ad absurdum" which indicates that we have gone astray in our understanding of how rules operate.
Such theorists seek to avoid linguistic indeterminacy, and reject interpretation as the fundamental determinant of meaning by denying that there is a gap which needs to be bridged between grasping a rule and understanding those actions which it requires.
As was noted above, this denial usually proceeds via a non-sceptical reading of Wittgenstein's remarks on rule-following, along the lines of that offered by McDowell 1984 and Baker and Hacker 1985.
One debate on this issue is that between Dworkin, who champions the role of the value of integrity in interpreting the law, and those who, like Raz, and Réaume (1989), doubt whether Dworkinian integrity is a value which should be pursued in legal interpretation.
Can interpretation in legal reasoning lead judges to the ‘one
right answer’ as regards the legal issue at hand?
For example, Finnis 1987 denies that it is possible for interpretation in legal reasoning to lead judges to one right answer in the sense claimed in Dworkin, because of pervasive incommensurabilities in the criteria by reference to which we are supposed to adjudge one interpretation to be better than another.
Finnis argues, contra Dworkin, that while we should seek good answers and avoid bad ones, we should not delude ourselves into dreaming of uniquely correct answers to issues of legal interpretation, for to do so commits us to, ‘utilitarianism's deepest and most flawed assumption: the assumption of the commensurability of basic goods and thus of the states of affairs which instantiate them.’ (Finnis 1987, p. 375).
Dworkin (1986 & 1991) remains firmly committed to the one right answer thesis, although it should be noted that Dworkin makes the point that in a sense there can be different ‘right answers’ for different interpreters.
For every route that Hercules took from that general conception to a particular verdict, another lawyer or judge who began in the same conception would find a different route and end in a different place, as several of the judges in our sample cases did.
He would end differently because he would take leave of Hercules, following his own lights, at some branching point sooner or later in the argument.
Raz 2009 contends that interpretive pluralism is a basic feature of the concept of interpretation as we understand it, i.e. that there can be several different and incompatible interpretations of the same object, all of which can be good.
For example, Finnis 1987 denies that it is possible for interpretation in legal reasoning to lead judges to one right answer in the sense claimed in Dworkin, because of pervasive incommensurabilities in the criteria by reference to which we are supposed to adjudge one interpretation to be better than another.
Finnis argues, contra Dworkin, that while we should seek good answers and avoid bad ones, we should not delude ourselves into dreaming of uniquely correct answers to issues of legal interpretation, for to do so commits us to, ‘utilitarianism's deepest and most flawed assumption: the assumption of the commensurability of basic goods and thus of the states of affairs which instantiate them.’ (Finnis 1987, p. 375).
Dworkin (1986 & 1991) remains firmly committed to the one right answer thesis, although it should be noted that Dworkin makes the point that in a sense there can be different ‘right answers’ for different interpreters.
For every route that Hercules took from that general conception to a particular verdict, another lawyer or judge who began in the same conception would find a different route and end in a different place, as several of the judges in our sample cases did.
He would end differently because he would take leave of Hercules, following his own lights, at some branching point sooner or later in the argument.
Raz 2009 contends that interpretive pluralism is a basic feature of the concept of interpretation as we understand it, i.e. that there can be several different and incompatible interpretations of the same object, all of which can be good.
The points of disagreement surveyed above speak to differing views
regarding how judges should go about interpreting the law, and how we should
understand their activities.
Such concerns, however, do not directly address the important question of whether there is something about the nature of law which makes it either desirable or necessary that interpretation should play a role in legal reasoning in the first place.
In other words: why is legal reasoning interpretive at all?
Such concerns, however, do not directly address the important question of whether there is something about the nature of law which makes it either desirable or necessary that interpretation should play a role in legal reasoning in the first place.
In other words: why is legal reasoning interpretive at all?
Raz contends that while some conventions of legal interpretation vary
according to time and place, there are other features which legal interpretation
necessarily exhibits, owing to the nature of law itself.
While we can debate about the desirability of conventions of interpretation falling into the former category (e.g. we can consider the value of allowing the work of legal academics, or records of Parliamentary debates to serve as aids to interpretation in a particular jurisdiction), the latter category of features leave us no room for manoeuvre.
Courts cannot help but have recourse to them in interpreting the law.
According to Raz, assigning a limited role to the intentions of legislators in the interpretation of legislation is one such necessary feature of legal interpretation.
It is, he claims, simply part of our way of thinking about legislative institutions that their procedures and modes of operation are designed so as to allow legislators to make the law which they intend to make.
To assume otherwise, Raz contends, is to render unintelligible any possible justification for entrusting law-making powers to those institutions.
This being so, when judges come to interpret the decisions of legislative institutions, they must do so such that the law thus interpreted reflects the intentions of those who made it.
While we can debate about the desirability of conventions of interpretation falling into the former category (e.g. we can consider the value of allowing the work of legal academics, or records of Parliamentary debates to serve as aids to interpretation in a particular jurisdiction), the latter category of features leave us no room for manoeuvre.
Courts cannot help but have recourse to them in interpreting the law.
According to Raz, assigning a limited role to the intentions of legislators in the interpretation of legislation is one such necessary feature of legal interpretation.
It is, he claims, simply part of our way of thinking about legislative institutions that their procedures and modes of operation are designed so as to allow legislators to make the law which they intend to make.
To assume otherwise, Raz contends, is to render unintelligible any possible justification for entrusting law-making powers to those institutions.
This being so, when judges come to interpret the decisions of legislative institutions, they must do so such that the law thus interpreted reflects the intentions of those who made it.
These considerations may also seem to speak mainly to the issue of how we
are to go about interpreting aspects of the law.
However, the reasons why it is important to pay attention to the intentions of law-making institutions when we interpret the law also furnish us with Raz's answer to the question of why legal reasoning is interpretive at all.
We pay attention to the intentions of law-making institutions because it is important to establish which legal rules those institutions have laid down, and what they mean. In turn, it is important to establish the existence and meaning of legal rules laid down by law-making institutions because of law's purportedly authoritative nature.
For Raz, legal institutions claim to express binding and authoritative judgements regarding what ought to be done which are designed to allow people to better conform to reason if they follow the decisions of the authority than if they try to follow those other reasons which apply to them directly (see Raz 1994, ch.10).
In deciding cases according to law, then, we have a responsibility to try to establish the existence and meaning of any purportedly authoritatively binding legal rules which have a bearing on the situation under consideration, and we do so by interpreting the decisions of law-making institutions in a way which accords with the intentions of those institutions in making the decisions in question.
For Raz, then, it is the authoritative nature of law which explains why legal reasoning is interpretive, whereas, for example, moral reasoning is not. Law, unlike morality, stems from social sources (on the role of social sources in understanding law, see Raz 1979 and the entry on legal positivism), from institutions issuing purportedly authoritative directives which claim to express a binding judgement about what ought to be done.
Part of our task in reasoning about the law is thus to establish the existence and meaning of those directives, and, in order to do so, we must interpret the decisions of law-making institutions in accordance with the intentions of the law-makers in order to try to establish the content and meaning of the law which they intended to make (see also Raz 1996a and 1996b).
However, the reasons why it is important to pay attention to the intentions of law-making institutions when we interpret the law also furnish us with Raz's answer to the question of why legal reasoning is interpretive at all.
We pay attention to the intentions of law-making institutions because it is important to establish which legal rules those institutions have laid down, and what they mean. In turn, it is important to establish the existence and meaning of legal rules laid down by law-making institutions because of law's purportedly authoritative nature.
For Raz, legal institutions claim to express binding and authoritative judgements regarding what ought to be done which are designed to allow people to better conform to reason if they follow the decisions of the authority than if they try to follow those other reasons which apply to them directly (see Raz 1994, ch.10).
In deciding cases according to law, then, we have a responsibility to try to establish the existence and meaning of any purportedly authoritatively binding legal rules which have a bearing on the situation under consideration, and we do so by interpreting the decisions of law-making institutions in a way which accords with the intentions of those institutions in making the decisions in question.
For Raz, then, it is the authoritative nature of law which explains why legal reasoning is interpretive, whereas, for example, moral reasoning is not. Law, unlike morality, stems from social sources (on the role of social sources in understanding law, see Raz 1979 and the entry on legal positivism), from institutions issuing purportedly authoritative directives which claim to express a binding judgement about what ought to be done.
Part of our task in reasoning about the law is thus to establish the existence and meaning of those directives, and, in order to do so, we must interpret the decisions of law-making institutions in accordance with the intentions of the law-makers in order to try to establish the content and meaning of the law which they intended to make (see also Raz 1996a and 1996b).
It is interesting to compare Raz's stance on the reasons why legal
reasoning is necessarily interpretive with Dworkin's views on this topic.
Rather than being based on the view that in ascertaining the content and meaning of the law, we should look to authoritative social sources, Dworkin's contention that legal reasoning is necessarily interpretive rests on an account of law which expressly repudiates the Razian understanding of law as source-based.
According to Dworkin, the view that law is to be identified by reference to authoritative social sources yields a grossly inadequate account of the argumentative nature of legal practice, and of the nature and depth of disagreement within it.
Dworkin contends that an adequate account of these features of legal practice can only be gained when we understand that law is an interpretive concept, i.e. that it is a social practice wherein a certain interpretive attitude has taken hold.
The attitude in question comprises two components: the assumption that the practice does not merely exist, but has a purpose or point, and the further assumption that the rules of the practice are not necessarily what they have always been taken to be, but rather are sensitive to, and can be revised in light of, its point (Dworkin 1986 ch.2; also, the entry on interpretivist theories of law).
For Dworkin, then, it is these features of the social practice of law: that members of that practice dispute and disagree about what the best interpretation of the rules of the practice are, in light of its point, which dictate that legal reasoning is necessarily interpretive.
Once the interpretive attitude has taken hold amongst the participants in a social practice, the only way to understand it adequately is to do as the participants in that practice do: i.e. join the practice and make the same kind of interpretive claims concerning the point of the practice, and what the rules of it are in light of that point, as they do.
For Dworkin, this point holds good for the activities of judges and legal theorists alike: anyone reasoning about the law is required to treat it as an interpretive social practice and offer interpretations of what it requires in light of the purpose or point which they assign to it.
Rather than being based on the view that in ascertaining the content and meaning of the law, we should look to authoritative social sources, Dworkin's contention that legal reasoning is necessarily interpretive rests on an account of law which expressly repudiates the Razian understanding of law as source-based.
According to Dworkin, the view that law is to be identified by reference to authoritative social sources yields a grossly inadequate account of the argumentative nature of legal practice, and of the nature and depth of disagreement within it.
Dworkin contends that an adequate account of these features of legal practice can only be gained when we understand that law is an interpretive concept, i.e. that it is a social practice wherein a certain interpretive attitude has taken hold.
The attitude in question comprises two components: the assumption that the practice does not merely exist, but has a purpose or point, and the further assumption that the rules of the practice are not necessarily what they have always been taken to be, but rather are sensitive to, and can be revised in light of, its point (Dworkin 1986 ch.2; also, the entry on interpretivist theories of law).
For Dworkin, then, it is these features of the social practice of law: that members of that practice dispute and disagree about what the best interpretation of the rules of the practice are, in light of its point, which dictate that legal reasoning is necessarily interpretive.
Once the interpretive attitude has taken hold amongst the participants in a social practice, the only way to understand it adequately is to do as the participants in that practice do: i.e. join the practice and make the same kind of interpretive claims concerning the point of the practice, and what the rules of it are in light of that point, as they do.
For Dworkin, this point holds good for the activities of judges and legal theorists alike: anyone reasoning about the law is required to treat it as an interpretive social practice and offer interpretations of what it requires in light of the purpose or point which they assign to it.
As several commentators have noted, coherence theories, long influential in other areas of philosophy (see,
for example, the entries on the coherence theory of truth and coherentist
theories of epistemic justification) have more recently found their way into the
philosophy of law (for a general survey of coherence theories in law which also
considers them in the context of coherence theories of truth, justified belief,
ethics and justice, see Kress 1996).
While this migration may be attributed in part to the frequent influence of the general philosophical climate upon the intellectual weather systems of jurisprudential theorising, it also makes sense to ask whether there is something about the nature of law which makes it particularly ripe for explanation via coherence accounts.
For example, those commentators who view Dworkin's theory of law as integrity as a coherence account appear to answer this question in the affirmative (see e.g. Kress 1984; Hurley 1989): coherence, in the sense of interpreting the law as speaking with one voice as integrity requires, is a value which is supposed to have special relevance in the legal realm, in terms of the role which it should play in guiding judges seeking to interpret the law correctly.
It has also been noted that features of the law such as the doctrine of precedent, arguments from analogy, and the requirement that like cases be treated alike seem particularly apt to be illuminated via some kind of coherence explanation. (See Kress 1984. Raz 1994a notes the temptation here, but contends that there is nothing inherent in arguments from analogy or in the requirement that like cases be treated alike which demands that they be understood in terms of a coherence account of adjudication.
On the role of arguments from analogy in legal reasoning more generally, see Weinreb 2005, and also the entry precedent and analogy in legal reasoning.)
Moreover, the idea of coherence as a special virtue of interpretation in legal reasoning plays an important role in the work of several major continental legal philosophers (see e.g. Peczenik 1989; Alexy 1989; Aarnio 1987; Alexy & Peczenik 1990).
While this migration may be attributed in part to the frequent influence of the general philosophical climate upon the intellectual weather systems of jurisprudential theorising, it also makes sense to ask whether there is something about the nature of law which makes it particularly ripe for explanation via coherence accounts.
For example, those commentators who view Dworkin's theory of law as integrity as a coherence account appear to answer this question in the affirmative (see e.g. Kress 1984; Hurley 1989): coherence, in the sense of interpreting the law as speaking with one voice as integrity requires, is a value which is supposed to have special relevance in the legal realm, in terms of the role which it should play in guiding judges seeking to interpret the law correctly.
It has also been noted that features of the law such as the doctrine of precedent, arguments from analogy, and the requirement that like cases be treated alike seem particularly apt to be illuminated via some kind of coherence explanation. (See Kress 1984. Raz 1994a notes the temptation here, but contends that there is nothing inherent in arguments from analogy or in the requirement that like cases be treated alike which demands that they be understood in terms of a coherence account of adjudication.
On the role of arguments from analogy in legal reasoning more generally, see Weinreb 2005, and also the entry precedent and analogy in legal reasoning.)
Moreover, the idea of coherence as a special virtue of interpretation in legal reasoning plays an important role in the work of several major continental legal philosophers (see e.g. Peczenik 1989; Alexy 1989; Aarnio 1987; Alexy & Peczenik 1990).
The following discussion attempts to explore some of these issues
concerning whether and why considerations of coherence have an important role to
play in understanding law. As this entry seeks to illuminate the role of
coherence in legal reasoning, the emphasis here is on coherence accounts of
adjudication, and on examining the role which coherence plays in courts'
reasoning about how to decide cases according to law.
This being so, this part of the entry discusses legal reasoning in the sense outlined in formulation (b) in Section 1 ("What Do Legal Theorists Mean By ‘Legal Reasoning’?"), i.e. reasoning from the content of the existing law on a given issue to the decision which a court should reach in a case involving that issue which comes before it.
This being so, this part of the entry discusses legal reasoning in the sense outlined in formulation (b) in Section 1 ("What Do Legal Theorists Mean By ‘Legal Reasoning’?"), i.e. reasoning from the content of the existing law on a given issue to the decision which a court should reach in a case involving that issue which comes before it.
Two central questions must be addressed in considering the role of
coherence in legal reasoning:
What is the nature of the coherence relation which features in coherence accounts of adjudication?
What role does coherence play in explaining or justifying judicial decisions in such accounts?
What is the nature of the coherence relation which features in coherence accounts of adjudication?
What role does coherence play in explaining or justifying judicial decisions in such accounts?
Amongst those legal theorists taking an interest in the role of coherence
in legal reasoning, there is general agreement both that the coherence in
question must amount to more than logical consistency amongst propositions (see
Kress 1984; MacCormick 1984; Marmor 1992 & 2005; Alexy & Peczenik 1990)
and that it is not clear from many coherence accounts exactly what this
something more amounts to (see Kress 1984; Peczenik 1989; Marmor 1992).
MacCormick 1984 views coherence in terms of unity of principle in a legal system, contending that the coherence of a set of legal norms consists in their being related either in virtue of being the realisation of some common value or values, or in virtue of fulfilling some common principle or principles.
Raz also characterises coherence in law in terms of unity of principle.
On his view, the more unified the set of principles underlying those court decisions and legislative acts which make up the law, the more coherent law is.
MacCormick 1984 views coherence in terms of unity of principle in a legal system, contending that the coherence of a set of legal norms consists in their being related either in virtue of being the realisation of some common value or values, or in virtue of fulfilling some common principle or principles.
Raz also characterises coherence in law in terms of unity of principle.
On his view, the more unified the set of principles underlying those court decisions and legislative acts which make up the law, the more coherent law is.
Other writers have attempted to supply a more formal definition of, for
example, a minimally coherent legal system (see Levenbook 1984), or otherwise to
flesh out in a more detailed manner the criteria of coherence.
Alexy and Peczenik 1990 define coherence in legal reasoning in terms of the degree of approximation to a perfect supportive structure exhibited by a set of propositions, and list ten criteria by reference to which coherence thus defined can be evaluated.
The criteria are:
(1) the number of supportive relations
(2) the length of the supportive chains
(3) the strength of the support
(4) the connections between supportive chains
(5) priority orders between reasons
(6) reciprocal justification
(7) generality
(8) conceptual cross-connections
(9) number of cases a theory covers, and
(10) diversity of fields of life to which the theory is applicable.
Such an approach raises many questions, such as how these various criteria of coherence are to be weighed and balanced against each other, and whether it is always the case that the weighing operation will result in a complete ranking of given sets of propositions as either more or less coherent than each other, so that when faced with competing such sets, it is always possible to find the most coherent set of propositions according to the ten criteria.
Alexy and Peczenik recognise that weighing and balancing the criteria of coherence will be a complex matter, but appear to assume that it will always be possible to establish which is the most coherent of rival sets of propositions.
Alexy and Peczenik 1990 define coherence in legal reasoning in terms of the degree of approximation to a perfect supportive structure exhibited by a set of propositions, and list ten criteria by reference to which coherence thus defined can be evaluated.
The criteria are:
(1) the number of supportive relations
(2) the length of the supportive chains
(3) the strength of the support
(4) the connections between supportive chains
(5) priority orders between reasons
(6) reciprocal justification
(7) generality
(8) conceptual cross-connections
(9) number of cases a theory covers, and
(10) diversity of fields of life to which the theory is applicable.
Such an approach raises many questions, such as how these various criteria of coherence are to be weighed and balanced against each other, and whether it is always the case that the weighing operation will result in a complete ranking of given sets of propositions as either more or less coherent than each other, so that when faced with competing such sets, it is always possible to find the most coherent set of propositions according to the ten criteria.
Alexy and Peczenik recognise that weighing and balancing the criteria of coherence will be a complex matter, but appear to assume that it will always be possible to establish which is the most coherent of rival sets of propositions.
A further characterisation of the kind of coherence which is to be sought
in legal reasoning may be found in Ronald Dworkin's work.
Many writers regard Dworkin's account of integrity in adjudication as an example of a coherence account. (See Hurley 1989 & 1990; Marmor 1992 & 2005. Kress 1984, although writing before Dworkin had fully developed his account of law as integrity, also views Dworkin as offering a coherence account of adjudication. Raz 1994a disputes the idea that Dworkin's account of law should be understood as a coherence account.)
On this view, judges should try to realise the value of coherence in judicial decisions by interpreting the law as ‘speaking with one voice’, i.e. they should identify legal rights and duties on the basis that they were all created by a single author, the community personified.
Many writers regard Dworkin's account of integrity in adjudication as an example of a coherence account. (See Hurley 1989 & 1990; Marmor 1992 & 2005. Kress 1984, although writing before Dworkin had fully developed his account of law as integrity, also views Dworkin as offering a coherence account of adjudication. Raz 1994a disputes the idea that Dworkin's account of law should be understood as a coherence account.)
On this view, judges should try to realise the value of coherence in judicial decisions by interpreting the law as ‘speaking with one voice’, i.e. they should identify legal rights and duties on the basis that they were all created by a single author, the community personified.
What is to be made coherent in
coherence accounts of legal reasoning?
What role coherence plays in explaining or justifying judicial decisions on such accounts?
Regarding the question of what is to be made coherent in coherence accounts of legal reasoning, Raz 1994a contends that coherence accounts, when applied to law, require a ‘base’ or something which is to be made coherent, which differs in character in some crucial respects from the sort of base which features in coherence accounts in other areas of philosophy.
Raz points out that while coherence accounts of justified belief take each person's belief set as their ‘base’ or as that which is to be made coherent, coherence accounts of law cannot be person-relative in this way, on pain of failing to offer an account which is in touch with the concrete reality of law in the jurisdiction under consideration.
Raz's contention is that the law of a given jurisdiction does not vary with the beliefs of those subject to it, and in his view, that law is objective in this way means that there must be a common base to which coherence accounts in law are addressed. His suggestion in this regard is that coherence accounts in law take court decisions and legislative and regulatory acts as their base, and hold law to be the set of principles that makes the most coherent sense of that base.
Raz further distinguishes between coherence accounts of law and coherence accounts of adjudication. The essential difference between them is the stage at which considerations of coherence come into play.
In the case of a coherence account of law, the whole of what the law is is determined by applying a coherence test to those court decisions and legislative and regulatory acts of a given jurisdiction. A coherence account of adjudication, however, accepts that the vagaries of politics and the influence of political considerations on legislative and judicial decisions make it unlikely that the settled law of a jurisdiction will exhibit coherence to any great extent.
This being so, if we are to apply a coherence account in order to determine how judges ought to decide cases according to law (legal reasoning in sense (b)), then we should assume a coherence-independent test to identify the settled law of a jurisdiction first, and then bring in considerations of coherence at a later stage, and hold that courts ought to adopt that outcome to a case which is favoured by the most coherent set of propositions which, were the settled rules of the system justified, would justify them.
What role coherence plays in explaining or justifying judicial decisions on such accounts?
Regarding the question of what is to be made coherent in coherence accounts of legal reasoning, Raz 1994a contends that coherence accounts, when applied to law, require a ‘base’ or something which is to be made coherent, which differs in character in some crucial respects from the sort of base which features in coherence accounts in other areas of philosophy.
Raz points out that while coherence accounts of justified belief take each person's belief set as their ‘base’ or as that which is to be made coherent, coherence accounts of law cannot be person-relative in this way, on pain of failing to offer an account which is in touch with the concrete reality of law in the jurisdiction under consideration.
Raz's contention is that the law of a given jurisdiction does not vary with the beliefs of those subject to it, and in his view, that law is objective in this way means that there must be a common base to which coherence accounts in law are addressed. His suggestion in this regard is that coherence accounts in law take court decisions and legislative and regulatory acts as their base, and hold law to be the set of principles that makes the most coherent sense of that base.
Raz further distinguishes between coherence accounts of law and coherence accounts of adjudication. The essential difference between them is the stage at which considerations of coherence come into play.
In the case of a coherence account of law, the whole of what the law is is determined by applying a coherence test to those court decisions and legislative and regulatory acts of a given jurisdiction. A coherence account of adjudication, however, accepts that the vagaries of politics and the influence of political considerations on legislative and judicial decisions make it unlikely that the settled law of a jurisdiction will exhibit coherence to any great extent.
This being so, if we are to apply a coherence account in order to determine how judges ought to decide cases according to law (legal reasoning in sense (b)), then we should assume a coherence-independent test to identify the settled law of a jurisdiction first, and then bring in considerations of coherence at a later stage, and hold that courts ought to adopt that outcome to a case which is favoured by the most coherent set of propositions which, were the settled rules of the system justified, would justify them.
MacCormick 1984 espouses a similar view of the role which coherence can
play in adjudication and gives an indication of how we might think of the links
between interpretation and coherence in legal reasoning.
According to MacCormick, in deciding a case according to law, courts should first of all interpret the existing law in order to establish a coherent view of some branch of the law, and they should do this by showing how that branch of law is justified according to some coherent set of principles or values which underlie it.
The court should then use this view of the law in order to justify its decision in a new case which comes before it.
On such an approach, then, once courts establish what the settled law is, they should then interpret law in applying it to a new case such that their decision is in accord with the most coherent account which justifies that settled law.
According to MacCormick, in deciding a case according to law, courts should first of all interpret the existing law in order to establish a coherent view of some branch of the law, and they should do this by showing how that branch of law is justified according to some coherent set of principles or values which underlie it.
The court should then use this view of the law in order to justify its decision in a new case which comes before it.
On such an approach, then, once courts establish what the settled law is, they should then interpret law in applying it to a new case such that their decision is in accord with the most coherent account which justifies that settled law.
Once a stance has been taken on the nature of the coherence relation in the
case of law, many further questions concerning the role which considerations of
coherence are to play in legal reasoning come to the fore.
One important issue is that of how much emphasis is to be placed on coherence in justifying a judicial decision.
Is exhibiting some degree of coherence with the existing law a necessary requirement of any justified judicial decision?
Is it both a necessary and sufficient requirement, such that an account of the role of coherence in adjudication supplies us with a complete explanation of how judges should decide cases according to law?
Or is coherence rather to be regarded as a desirable feature of judicial decision making, but one which can be overridden by other considerations in certain circumstances?
One important issue is that of how much emphasis is to be placed on coherence in justifying a judicial decision.
Is exhibiting some degree of coherence with the existing law a necessary requirement of any justified judicial decision?
Is it both a necessary and sufficient requirement, such that an account of the role of coherence in adjudication supplies us with a complete explanation of how judges should decide cases according to law?
Or is coherence rather to be regarded as a desirable feature of judicial decision making, but one which can be overridden by other considerations in certain circumstances?
At this point in the discussion, it is possible to draw out some further
possible links between the two concepts with which this entry is concerned,
namely interpretation and coherence.
If we hold that legal reasoning in sense (b), namely reasoning from the content of the law to the outcome which judges should adopt in a case before them, is wholly (Dworkin 1986) or mainly (Raz 1996a) interpretive, then we can reformulate some of the questions raised above concerning how much emphasis is to be placed upon coherence in adjudication in terms of the extent to which, in interpreting the law, we should interpret it in such a way as to realise the value of coherence in judicial decisions.
So, for example, is coherence the sole desideratum which should guide judges in interpreting the law, or is it merely one feature of a successful such interpretation, and, moreover, is it a necessary feature, or one which, although desirable, may be overridden by competing values which judges should also try to realise in interpreting the law?
If we hold that legal reasoning in sense (b), namely reasoning from the content of the law to the outcome which judges should adopt in a case before them, is wholly (Dworkin 1986) or mainly (Raz 1996a) interpretive, then we can reformulate some of the questions raised above concerning how much emphasis is to be placed upon coherence in adjudication in terms of the extent to which, in interpreting the law, we should interpret it in such a way as to realise the value of coherence in judicial decisions.
So, for example, is coherence the sole desideratum which should guide judges in interpreting the law, or is it merely one feature of a successful such interpretation, and, moreover, is it a necessary feature, or one which, although desirable, may be overridden by competing values which judges should also try to realise in interpreting the law?
Levenbook 1984 contends that it is a necessary condition for a judicial
decision to be legally justified that it coheres with some part of the
established law.
She contrasts her understanding of this requirement with that adopted by MacCormick 1978.
According to Levenbook, while MacCormick also holds that minimal coherence with some part of the established law is a necessary condition of a judicial decision being justified, he nevertheless contends that, so long as this minimal standard is met, further considerations of coherence which are also relevant to the decision can be defeated on consequentialist grounds.
Levenbook's view is that this approach gives coherence too modest a role to play in legal reasoning; once a very minimal requirement of coherence is met, this value is too easily defeasible by other considerations. Levenbook finds this account of adjudication troubling because, in her view, it fails to do justice to judges' responsibility to be faithful to pre-existing law, a responsibility which places the judiciary in a quite different situation from the legislature when it comes to the question of how law ought to be developed. She contends that a judge who, within the limits allowed to him by the law, adopts a decision which is better on moral grounds over one which displays greater congruence with the trend or spirit of the existing law has made a mistake, and has adopted a legally unjustified decision.
Levenbook very succinctly focuses the dilemma which judges must confront in deciding how much weight is to be placed on considerations of coherence in judicial decisions: should judges always adopt the outcome to a case which best coheres with the pre-existing law, or can they ever be justified in adopting an outcome which is less coherent but morally preferable?
This way of focusing the dilemma which judges may face brings out another important aspect of coherence in legal reasoning, namely that granting a strong role to considerations of coherence is to place considerable emphasis on the backward-looking aspect of adjudication, as such an approach may require judges to place greater value on adhering to what has gone before, rather than on doing what would otherwise, on moral grounds, be the right thing.
She contrasts her understanding of this requirement with that adopted by MacCormick 1978.
According to Levenbook, while MacCormick also holds that minimal coherence with some part of the established law is a necessary condition of a judicial decision being justified, he nevertheless contends that, so long as this minimal standard is met, further considerations of coherence which are also relevant to the decision can be defeated on consequentialist grounds.
Levenbook's view is that this approach gives coherence too modest a role to play in legal reasoning; once a very minimal requirement of coherence is met, this value is too easily defeasible by other considerations. Levenbook finds this account of adjudication troubling because, in her view, it fails to do justice to judges' responsibility to be faithful to pre-existing law, a responsibility which places the judiciary in a quite different situation from the legislature when it comes to the question of how law ought to be developed. She contends that a judge who, within the limits allowed to him by the law, adopts a decision which is better on moral grounds over one which displays greater congruence with the trend or spirit of the existing law has made a mistake, and has adopted a legally unjustified decision.
Levenbook very succinctly focuses the dilemma which judges must confront in deciding how much weight is to be placed on considerations of coherence in judicial decisions: should judges always adopt the outcome to a case which best coheres with the pre-existing law, or can they ever be justified in adopting an outcome which is less coherent but morally preferable?
This way of focusing the dilemma which judges may face brings out another important aspect of coherence in legal reasoning, namely that granting a strong role to considerations of coherence is to place considerable emphasis on the backward-looking aspect of adjudication, as such an approach may require judges to place greater value on adhering to what has gone before, rather than on doing what would otherwise, on moral grounds, be the right thing.
Raz, who contends that coherence in legal reasoning is sometimes
desirable, but certainly defeasible, poses essentially the same dilemma, but
seems to place the burden of proof on those grasping the other horn of it.
That is to say, Raz asks not how could it ever be justified for judges to deviate from the trend of the existing law in order to adopt a less coherent but otherwise morally preferable decision, but rather why should judges ever deviate from what is otherwise the morally best solution to a case before them on grounds of coherence?
The burden of proof point is important because Raz's view seems to be that arguments in favour of a strong role for coherence in legal reasoning go through too easily, or are too readily adopted as a default position, perhaps because of the fact that reasoning by analogy is a common feature of many legal systems and seems to lend itself to being characterised in coherence terms, such that the facts speak for themselves in favour of the conclusion that considerations of coherence have a special role to play in legal reasoning.
Pointing out that reasoning by analogy is not a necessary fact of life in all legal systems, and that, even where it does feature, it is still necessary to provide an explanation of the rationale of arguments from analogy, and the links between such arguments and coherence accounts of adjudication, Raz seeks to shift the burden of proof onto those who champion coherence.
If judges are sometimes to deviate from what would otherwise be, according to law, the morally best outcome to a case before them on grounds of coherence, then, Raz contends, we are in need of a convincing positive argument why this should be so.
That is to say, Raz asks not how could it ever be justified for judges to deviate from the trend of the existing law in order to adopt a less coherent but otherwise morally preferable decision, but rather why should judges ever deviate from what is otherwise the morally best solution to a case before them on grounds of coherence?
The burden of proof point is important because Raz's view seems to be that arguments in favour of a strong role for coherence in legal reasoning go through too easily, or are too readily adopted as a default position, perhaps because of the fact that reasoning by analogy is a common feature of many legal systems and seems to lend itself to being characterised in coherence terms, such that the facts speak for themselves in favour of the conclusion that considerations of coherence have a special role to play in legal reasoning.
Pointing out that reasoning by analogy is not a necessary fact of life in all legal systems, and that, even where it does feature, it is still necessary to provide an explanation of the rationale of arguments from analogy, and the links between such arguments and coherence accounts of adjudication, Raz seeks to shift the burden of proof onto those who champion coherence.
If judges are sometimes to deviate from what would otherwise be, according to law, the morally best outcome to a case before them on grounds of coherence, then, Raz contends, we are in need of a convincing positive argument why this should be so.
One such argument may well be found in a point already mentioned in passing
above, i.e. that judges are in a different position from legislators when it
comes to deciding how the law ought to be developed.
Raz (1979 and 1994a) argues that when faced with the choice of adopting the (according to law) morally best outcome to a case over an outcome which coheres better with the settled law, courts have to bear in mind that if they choose the former route, then some problematic consequences may ensue, such as that they may introduce conflicting rules reflecting conflicting social and economic purposes into the law, and hence create a considerable degree of dissonance with regard to existing legal doctrines in a given area of law.
Such consequences need not dog legislative attempts to develop the law in a way which deviates from the doctrinal past, because legislative institutions have the power to sweep away the past in introducing new legislation, and to do so in such a way as to radically reform a whole area of law at one stroke. Courts, by contrast, can only make decisions concerning the issues arising in the case before them, and have considerably less opportunity to engage in radical reform of the law. These factors mean that judicial reform of the law will always be partial in nature, and, as was noted above, such partial reform brings with it the possibility of introducing dissonance and conflict into the law in the meantime.
This may provide one reason why sometimes courts should give greater weight to considerations of coherence with pre-existing law in deciding cases which come before them, rather than striking out in a (albeit otherwise morally preferable) direction which coheres less well with settled law.
Raz (1979 and 1994a) argues that when faced with the choice of adopting the (according to law) morally best outcome to a case over an outcome which coheres better with the settled law, courts have to bear in mind that if they choose the former route, then some problematic consequences may ensue, such as that they may introduce conflicting rules reflecting conflicting social and economic purposes into the law, and hence create a considerable degree of dissonance with regard to existing legal doctrines in a given area of law.
Such consequences need not dog legislative attempts to develop the law in a way which deviates from the doctrinal past, because legislative institutions have the power to sweep away the past in introducing new legislation, and to do so in such a way as to radically reform a whole area of law at one stroke. Courts, by contrast, can only make decisions concerning the issues arising in the case before them, and have considerably less opportunity to engage in radical reform of the law. These factors mean that judicial reform of the law will always be partial in nature, and, as was noted above, such partial reform brings with it the possibility of introducing dissonance and conflict into the law in the meantime.
This may provide one reason why sometimes courts should give greater weight to considerations of coherence with pre-existing law in deciding cases which come before them, rather than striking out in a (albeit otherwise morally preferable) direction which coheres less well with settled law.
On Dworkin's account of adjudication—at least when that account is
understood as a coherence account (see subsection 3.1 above)—we find a different
kind of answer to the question of why coherence has a special role to play in
legal reasoning.
As was noted in subsection 2.4, for Dworkin, in adjudicating cases, judges should seek to constructively interpret the law, i.e. to impose purpose on it in order to make of it the best possible example of the form or genre to which it is taken to belong (see Dworkin 1986, chs.2 & 3, and the entry on interpretivist theories of law). For Dworkin, the form or genre of law is to provide a convincing justification for the exercise of state coercion (see Dworkin 1986, passim;), and, as he regards both judges and legal theorists as engaging in constructive interpretation (see Dworkin 1986, p90), Dworkin further contends that any adequate jurisprudential account of law must explain how what it takes to be law provides a general justification for the exercise of the coercive power of the state (for discussion of this point, see Dickson 2001, chs. 5 & 6, Dickson 2004 and cf. the entry on interpretivist theories of law).
In "Law's Empire", Dworkin argues that such a justification can best be provided when the law is viewed as the organised and coherent voice of what he refers to as a ‘community of principle’ i.e. a community whose members accept that their fates are linked by virtue of the fact that their rights and responsibilities are governed by common principles.
So for Dworkin, we must interpret law as coherent, in the sense of speaking with one voice, because by so doing, we understand law as the voice of a community of principle, and so as capable of providing a general justification for the exercise of state coercion (see Dworkin 1986).
As was noted in subsection 2.4, for Dworkin, in adjudicating cases, judges should seek to constructively interpret the law, i.e. to impose purpose on it in order to make of it the best possible example of the form or genre to which it is taken to belong (see Dworkin 1986, chs.2 & 3, and the entry on interpretivist theories of law). For Dworkin, the form or genre of law is to provide a convincing justification for the exercise of state coercion (see Dworkin 1986, passim;), and, as he regards both judges and legal theorists as engaging in constructive interpretation (see Dworkin 1986, p90), Dworkin further contends that any adequate jurisprudential account of law must explain how what it takes to be law provides a general justification for the exercise of the coercive power of the state (for discussion of this point, see Dickson 2001, chs. 5 & 6, Dickson 2004 and cf. the entry on interpretivist theories of law).
In "Law's Empire", Dworkin argues that such a justification can best be provided when the law is viewed as the organised and coherent voice of what he refers to as a ‘community of principle’ i.e. a community whose members accept that their fates are linked by virtue of the fact that their rights and responsibilities are governed by common principles.
So for Dworkin, we must interpret law as coherent, in the sense of speaking with one voice, because by so doing, we understand law as the voice of a community of principle, and so as capable of providing a general justification for the exercise of state coercion (see Dworkin 1986).
Some theorists are not so concerned to provide a ‘law-specific’ explanation
of why coherence has an important role to play in legal reasoning.
For example, although acknowledging that there may be much more to be said about what is distinctive about legal reasoning, Hurley 1990 is largely content to explore the consequences for legal reasoning which ensue from the coherentist account of general practical reasoning which she espouses.
For example, although acknowledging that there may be much more to be said about what is distinctive about legal reasoning, Hurley 1990 is largely content to explore the consequences for legal reasoning which ensue from the coherentist account of general practical reasoning which she espouses.
In considering the role of coherence in legal reasoning, a final point to
mention is that of how much of the law is to be made coherent according to
various jurisprudential accounts granting a role to considerations of coherence.
Are we talking of global coherence, such that judges should strive to reach judicial decisions which cohere to some extent with the settled law of an entire legal system, or should the coherence we seek be more local in nature, e.g. coherence with particular branches or areas of law?
Are we talking of global coherence, such that judges should strive to reach judicial decisions which cohere to some extent with the settled law of an entire legal system, or should the coherence we seek be more local in nature, e.g. coherence with particular branches or areas of law?
Levenbook 1984 is a supporter of local coherence, and criticises those who,
like Sartorius (1968 and 1971) and Dworkin (1977, and, although not yet written
at the time of Levenbook's article, Dworkin 1986), hold that justified judicial
decisions are those which best cohere with the law as a whole.
According to Levenbook, champions of global coherence ignore the fact that sometimes a legally justified decision is supported by, in the sense of cohering with, principles which are distinctive of one area or branch of the law, but the principles concerned differ substantially from, and hence do not cohere well with principles from other branches of law.
On this line of thinking, the judicial decision which coheres best with the principles underlying some specific field of law may not result in increased coherence of the entire system of law.
That global coherence theorists may well be led to reject such a decision, and to hold that an alternative decision which coheres well with the overall system of law, but which increases incoherence locally is the more strongly justified, is, for Levenbook, a good reason to reject their theories: she contends that any plausible account of adjudication must make room for the kind of ‘area-specific coherence’ which she believes is necessary in the case of law. Raz 1994a also champions local over global coherence in adjudication, and his argument mentioned in the previous section concerning the limitations on the reforming role of courts, and the way in which this sometimes militates in favour of coherence playing a role in judicial decision making, is intended to support local coherence only.
Peczenik claims that while the goal of the kind of doctrinal interpretation undertaken by legal scholars (which he refers to as ‘legal dogmatics’) is to establish the unity of an entire legal system, the judicial interpretation undertaken by judges is of a far more local variety, as it is concerned merely with the norms applicable to the case in question, and because a coherent interpretation of those norms may decrease their coherence with other legal norms.
According to Levenbook, champions of global coherence ignore the fact that sometimes a legally justified decision is supported by, in the sense of cohering with, principles which are distinctive of one area or branch of the law, but the principles concerned differ substantially from, and hence do not cohere well with principles from other branches of law.
On this line of thinking, the judicial decision which coheres best with the principles underlying some specific field of law may not result in increased coherence of the entire system of law.
That global coherence theorists may well be led to reject such a decision, and to hold that an alternative decision which coheres well with the overall system of law, but which increases incoherence locally is the more strongly justified, is, for Levenbook, a good reason to reject their theories: she contends that any plausible account of adjudication must make room for the kind of ‘area-specific coherence’ which she believes is necessary in the case of law. Raz 1994a also champions local over global coherence in adjudication, and his argument mentioned in the previous section concerning the limitations on the reforming role of courts, and the way in which this sometimes militates in favour of coherence playing a role in judicial decision making, is intended to support local coherence only.
Peczenik claims that while the goal of the kind of doctrinal interpretation undertaken by legal scholars (which he refers to as ‘legal dogmatics’) is to establish the unity of an entire legal system, the judicial interpretation undertaken by judges is of a far more local variety, as it is concerned merely with the norms applicable to the case in question, and because a coherent interpretation of those norms may decrease their coherence with other legal norms.
While, as Levenbook 1984 notes, Dworkin's account of integrity in
adjudication requires judges to attempt to view the legal system as a whole as
exhibiting coherence and speaking with one voice in interpreting the law,
Dworkin does also recognise that compartmentalisation into different branches or
areas of law is an indisputable feature of legal practice, and he accordingly
attempts to integrate it within his vision of adjudicative integrity.
He does so via his doctrine of local priority in interpretation, i.e. that if a given principle justifying a judicial decision does not fit at all well with the area of law which the case is classified as falling under, then this counts dramatically against deciding the case in accordance with that principle, no matter how well such an interpretation coheres with other areas of the law (see Dworkin 1986, ch. 7).
However, because of the strong pull toward global coherence in law as integrity—expressed in Dworkin's claim that it is necessary to strive to view the legal system as a whole as speaking with one voice, the voice of an authentic political community, in order that law can be seen as justifying state coercion—the current compartmentalisation of the law is not an unrevisable given for judges deciding cases, rather, it, too, is something which is subject to the Dworkinian process of constructive interpretation.
This being so, he claims, when the compartmentalisation of the law does not track widely held principles of those subject to the law accounting current classificatory boundaries as important, then the doctrine of local priority is to be given much less force.
Indeed, where there is a serious mismatch between the current compartmentalisation and actual views about relevant similarities and differences between areas of law held by those subject to it, it might be possible for judges to discard the doctrine of local priority altogether, and undertake radical reform of some departments of law in order to make them cohere better with others, or even to erase entire the alleged boundaries between certain branches of law in the course of interpreting the law and applying it to new cases.
He does so via his doctrine of local priority in interpretation, i.e. that if a given principle justifying a judicial decision does not fit at all well with the area of law which the case is classified as falling under, then this counts dramatically against deciding the case in accordance with that principle, no matter how well such an interpretation coheres with other areas of the law (see Dworkin 1986, ch. 7).
However, because of the strong pull toward global coherence in law as integrity—expressed in Dworkin's claim that it is necessary to strive to view the legal system as a whole as speaking with one voice, the voice of an authentic political community, in order that law can be seen as justifying state coercion—the current compartmentalisation of the law is not an unrevisable given for judges deciding cases, rather, it, too, is something which is subject to the Dworkinian process of constructive interpretation.
This being so, he claims, when the compartmentalisation of the law does not track widely held principles of those subject to the law accounting current classificatory boundaries as important, then the doctrine of local priority is to be given much less force.
Indeed, where there is a serious mismatch between the current compartmentalisation and actual views about relevant similarities and differences between areas of law held by those subject to it, it might be possible for judges to discard the doctrine of local priority altogether, and undertake radical reform of some departments of law in order to make them cohere better with others, or even to erase entire the alleged boundaries between certain branches of law in the course of interpreting the law and applying it to new cases.
KEYWORDS:
constitutionalism | justification, epistemic: coherentist theories of | legal reasoning: precedent and analogy in | nature of law | nature of law: interpretivist theories | nature of law: legal positivism | truth: coherence theory of
constitutionalism | justification, epistemic: coherentist theories of | legal reasoning: precedent and analogy in | nature of law | nature of law: interpretivist theories | nature of law: legal positivism | truth: coherence theory of
Arguments from precedent and analogy are two central forms of reasoning found in many legal systems, especially ‘Common Law’ systems.
Precedent involves an earlier decision being followed in a later case because both cases are the same. Analogy involves an earlier decision being followed in a later case because the later case is similar to the earlier one.
The main philosophical problems raised by precedent and analogy are these:
When are two cases the ‘same’ for the purposes of precedent?
When are two cases ‘similar’ for the purposes of analogy? and
In both situations, why should the decision in the earlier case affect the decision in the later case?
The study of precedent and analogy is of interest for a number of
reasons.
Some theorists claim that precedent
involves a form of reasoning different to reasoning using rules.
Although arguments from precedent are extremely common in many institutional and quasi-institutional settings, not merely the law, there is no consensus on the rational basis for their force, nor indeed on whether such arguments have any rational force.
Some theorists argue that the use of analogies in law is not a form of ‘reasoning’ at all; and finally,
d.even if there is an intelligible form of analogical reasoning, it is unclear why the similarity between two situations provide a reason for treating them both in the same manner.
Some theorists claim that precedent
involves a form of reasoning different to reasoning using rules.
Although arguments from precedent are extremely common in many institutional and quasi-institutional settings, not merely the law, there is no consensus on the rational basis for their force, nor indeed on whether such arguments have any rational force.
Some theorists argue that the use of analogies in law is not a form of ‘reasoning’ at all; and finally,
d.even if there is an intelligible form of analogical reasoning, it is unclear why the similarity between two situations provide a reason for treating them both in the same manner.
The law presents a useful context for considering these issues because its
use of precedent and analogy is well articulated and explicit. This entry is
organised into the following sections:
Arguments from precedent and analogy are characteristic of legal reasoning.
Legal reasoning differs in a number of ways from the sort of reasoning employed by individuals in their everyday lives.
It frequently uses arguments that individuals do not employ, or that individuals employ in different ways.
Precedent is a good example of this.
In individual reasoning, we do not normally regard the fact that we decided one way in the past as raising some presumption that we should decide the same way in the future.
Of course there can be special circumstances that have this effect.
Someone may have relied on what we did before, or may have had their expectations raised that we would do so again.
But absent these special considerations we do not regard ourselves as being committed in the future to make the same decision.
It is always open to us to reconsider a decision and change our minds if we no longer think our original judgement was correct.
Legal reasoning differs in a number of ways from the sort of reasoning employed by individuals in their everyday lives.
It frequently uses arguments that individuals do not employ, or that individuals employ in different ways.
Precedent is a good example of this.
In individual reasoning, we do not normally regard the fact that we decided one way in the past as raising some presumption that we should decide the same way in the future.
Of course there can be special circumstances that have this effect.
Someone may have relied on what we did before, or may have had their expectations raised that we would do so again.
But absent these special considerations we do not regard ourselves as being committed in the future to make the same decision.
It is always open to us to reconsider a decision and change our minds if we no longer think our original judgement was correct.
Law of course is not alone in attributing a special significance to
precedent.
Many institutional and quasi-institutional practices place weight on what they have done previously in determining what they should do now.
Individuals, by contrast, will often disregard what they did on an earlier occasion.
If they do make reference to the past, this will normally be due to their belief that what they did in the past was the right thing to do, or at least is a good guide to what is the right thing to do now.
Normally, then, individuals will merely be using their past decisions in the belief that they are a reliable short-cut to working out what is the right thing to do.
If they harbour doubts as to the correctness of the earlier decision then they will reopen the matter and consider it afresh on the merits.
In institutional settings, on the other hand, decision-makers will often refer to what has been decided in the past as constraining what should be done now, regardless of whether they think the original decision was correct.
Many institutional and quasi-institutional practices place weight on what they have done previously in determining what they should do now.
Individuals, by contrast, will often disregard what they did on an earlier occasion.
If they do make reference to the past, this will normally be due to their belief that what they did in the past was the right thing to do, or at least is a good guide to what is the right thing to do now.
Normally, then, individuals will merely be using their past decisions in the belief that they are a reliable short-cut to working out what is the right thing to do.
If they harbour doubts as to the correctness of the earlier decision then they will reopen the matter and consider it afresh on the merits.
In institutional settings, on the other hand, decision-makers will often refer to what has been decided in the past as constraining what should be done now, regardless of whether they think the original decision was correct.
Equally, institutional decision-makers often regard earlier decisions as
being relevant even when the decision at hand is different from the original
ones, by citing them as analogies.
They will argue that since an earlier decision was made on some matter, it would be inconsistent now to decide the present case differently.
Individuals, by contrast, will often simply attend to the merits of the particular question before them and try to get the decision right.
If it is pointed out that their current decision seems to be inconsistent with how they treated an earlier question, this may prompt them to reconsider, but is not in itself a reason to change their decision.
They may conclude that their earlier decision was a mistake, or they may even embrace the apparent inconsistency, believing that both the earlier and the later decisions are correct even though they are not sure how they can be reconciled.
They will argue that since an earlier decision was made on some matter, it would be inconsistent now to decide the present case differently.
Individuals, by contrast, will often simply attend to the merits of the particular question before them and try to get the decision right.
If it is pointed out that their current decision seems to be inconsistent with how they treated an earlier question, this may prompt them to reconsider, but is not in itself a reason to change their decision.
They may conclude that their earlier decision was a mistake, or they may even embrace the apparent inconsistency, believing that both the earlier and the later decisions are correct even though they are not sure how they can be reconciled.
Legal reasoning, then, gives a weight to what has been decided in the past
that is usually absent from personal decision-making.
We care about whether we made the right decisions in the past, but we seek to make the right decisions now, unconstrained by our earlier views.
We care about whether we made the right decisions in the past, but we seek to make the right decisions now, unconstrained by our earlier views.
Arguments from precedent are a prominent feature of legal reasoning, but hardly of PHILOSOPHICAL REASONING.
But what exactly is a ‘precedent’?
A precedent is the decision of a court (or other adjudicative body) that has a special legal significance.
That significance lies in the court's decision being regarded as having practical, and not merely theoretical, authority over the content of the law.
A decision has theoretical authority if the circumstances in which it was made (the identity of the decision-makers, those involved in arguing the case, the availability of evidence or time) provide good reasons for believing the decision to be correct in law.
If there are good reasons to believe that an earlier case was correctly decided, and if the facts in a later case are the same as those in the earlier case, then there are good reasons for believing that the same decision would be correct in the later case.
In some legal systems earlier decisions are, officially, treated in just this way.
Cases are cited to courts, but courts may only justify their decisions by reference to other legal materials such as legislation.
As a consequence the decision in an earlier case is not in itself regarded as a justification for reaching a decision in a later case.
But what exactly is a ‘precedent’?
A precedent is the decision of a court (or other adjudicative body) that has a special legal significance.
That significance lies in the court's decision being regarded as having practical, and not merely theoretical, authority over the content of the law.
A decision has theoretical authority if the circumstances in which it was made (the identity of the decision-makers, those involved in arguing the case, the availability of evidence or time) provide good reasons for believing the decision to be correct in law.
If there are good reasons to believe that an earlier case was correctly decided, and if the facts in a later case are the same as those in the earlier case, then there are good reasons for believing that the same decision would be correct in the later case.
In some legal systems earlier decisions are, officially, treated in just this way.
Cases are cited to courts, but courts may only justify their decisions by reference to other legal materials such as legislation.
As a consequence the decision in an earlier case is not in itself regarded as a justification for reaching a decision in a later case.
By contrast, precedents have practical authority because they are regarded
as partly constituting the law.
Simplifying somewhat, the law is what the court stated it to be because the court stated it to be such.
Putting the matter in these terms is over-simplified, however, because
(a) it may be that what the court did, rather than what it said, that alters the law, and
(b) there are normally a number of limitations on the capacity of a decision to constitute the law (depending upon the content of the decision and the status of the body making them).
An important consequence of precedents' practical authority is this: since courts are bound to apply the law, and since earlier decisions have practical authority over the content of the law (i.e., over what is the law), later courts are bound to follow the decisions of earlier cases.
This is commonly known as the doctrine of precedent, or stare decisis (i.e., standing by things decided).
Simplifying somewhat, the law is what the court stated it to be because the court stated it to be such.
Putting the matter in these terms is over-simplified, however, because
(a) it may be that what the court did, rather than what it said, that alters the law, and
(b) there are normally a number of limitations on the capacity of a decision to constitute the law (depending upon the content of the decision and the status of the body making them).
An important consequence of precedents' practical authority is this: since courts are bound to apply the law, and since earlier decisions have practical authority over the content of the law (i.e., over what is the law), later courts are bound to follow the decisions of earlier cases.
This is commonly known as the doctrine of precedent, or stare decisis (i.e., standing by things decided).
It should be noted that the modern Common Law endorses a particularly
strong version of stare decisis, one that requires later courts to follow
earlier decisions even if those cases were wrongly decided according to the
pre-existing law.
It is often assumed by Common Lawyers that a doctrine of stare decisis necessarily requires that later courts be bound by such erroneous decisions. This follows from the following line of thought.
If later courts were not bound to follow erroneous decisions, then they would only be ‘bound’ by earlier, correct judgments.
But an earlier correct judgment simply reaches the conclusion that the law already supported when it was delivered. So to direct courts to follow cases that were not erroneous would simply be to direct them to do what they are legally bound to do anyway (i.e., apply the law), thereby rendering the doctrine of precedent redundant. The flaw in this argument lies in the assumption that in every case there must be a single legally correct outcome, with other outcomes being wrong.
This overlooks the possibility of cases in which the merits of the dispute are legally indeterminate, so that there is more than one possible outcome that would not be wrong.
To say that a case is ‘legally indeterminate’ covers a range of situations, such as the merits of the opposing arguments being, in law, equal, or where the conflicting considerations cannot be rationally ranked against each other.
In cases such as these the decision alters the law without making any error.
The Common Law, then, might have limited its doctrine of stare decisis by holding that later courts were not bound by earlier decisions that were wrongly decided.
Instead it developed a different practice—that of ‘overruling’, whereby some courts were given a limited power to deprive earlier decisions of their binding status on the basis that they were wrongly decided.
So the Common Law's version of the doctrine of precedent does not inevitably flow from the fact that precedents have practical authority. Nonetheless the idea of being bound to follow even erroneous decisions is a common feature of many institutions decision-making, and will be the focus of this entry.
It is often assumed by Common Lawyers that a doctrine of stare decisis necessarily requires that later courts be bound by such erroneous decisions. This follows from the following line of thought.
If later courts were not bound to follow erroneous decisions, then they would only be ‘bound’ by earlier, correct judgments.
But an earlier correct judgment simply reaches the conclusion that the law already supported when it was delivered. So to direct courts to follow cases that were not erroneous would simply be to direct them to do what they are legally bound to do anyway (i.e., apply the law), thereby rendering the doctrine of precedent redundant. The flaw in this argument lies in the assumption that in every case there must be a single legally correct outcome, with other outcomes being wrong.
This overlooks the possibility of cases in which the merits of the dispute are legally indeterminate, so that there is more than one possible outcome that would not be wrong.
To say that a case is ‘legally indeterminate’ covers a range of situations, such as the merits of the opposing arguments being, in law, equal, or where the conflicting considerations cannot be rationally ranked against each other.
In cases such as these the decision alters the law without making any error.
The Common Law, then, might have limited its doctrine of stare decisis by holding that later courts were not bound by earlier decisions that were wrongly decided.
Instead it developed a different practice—that of ‘overruling’, whereby some courts were given a limited power to deprive earlier decisions of their binding status on the basis that they were wrongly decided.
So the Common Law's version of the doctrine of precedent does not inevitably flow from the fact that precedents have practical authority. Nonetheless the idea of being bound to follow even erroneous decisions is a common feature of many institutions decision-making, and will be the focus of this entry.
The precise operation of stare decisis varies from one legal system to
another.
It is common for courts lower in a judicial hierarchy to be strictly bound by the decisions of higher courts, so that Federal Court judges in the United States are bound by decisions of the Federal Court of Appeals for their circuit, and the English Court of Appeal is bound by decisions of the House of Lords.
The lower court is ‘strictly’ bound because it has no power to overrule the higher court's decision. Equally, most appeal courts are bound by their own earlier decisions, though they are generally entitled in certain circumstances to overrule those decisions.
There is enormous variation in the circumstances that are necessary for a court to overrule one of its own decisions: at a minimum it must regard the earlier decision as wrongly decided, but generally more is required than this, e.g. that the decision is ‘clearly’ or ‘plainly’ wrong.
Finally, courts are generally not bound by the decisions of lower courts.
The House of Lords for example is not bound to follow decisions of the Court of Appeal and is free to overrule such decisions if it takes a different view of how the case should have been decided.
It is common for courts lower in a judicial hierarchy to be strictly bound by the decisions of higher courts, so that Federal Court judges in the United States are bound by decisions of the Federal Court of Appeals for their circuit, and the English Court of Appeal is bound by decisions of the House of Lords.
The lower court is ‘strictly’ bound because it has no power to overrule the higher court's decision. Equally, most appeal courts are bound by their own earlier decisions, though they are generally entitled in certain circumstances to overrule those decisions.
There is enormous variation in the circumstances that are necessary for a court to overrule one of its own decisions: at a minimum it must regard the earlier decision as wrongly decided, but generally more is required than this, e.g. that the decision is ‘clearly’ or ‘plainly’ wrong.
Finally, courts are generally not bound by the decisions of lower courts.
The House of Lords for example is not bound to follow decisions of the Court of Appeal and is free to overrule such decisions if it takes a different view of how the case should have been decided.
The most important limitation on the application of precedent is that the
decision in an earlier case is only binding in later cases where the facts in
the later case are the ‘same’ as those in the earlier case.
It is agreed on all sides that if two cases are the same then the precedent applies, whereas if they are different it does not.
What makes two cases the same, however, is a matter of considerable debate, and goes to the root of the question of the nature of precedent in legal reasoning.
In saying that two cases are the same, it cannot be that they are identical. It is obvious that no two situations are identical in every respect: they must differ at least in having occurred at different times and/or different places.
In practice the differences between any two cases will be much more significant than this, and yet they may—legally speaking—still be the same.
For this reason, theorists often speak of two cases being the same in ‘all relevant respects’.
Which of course simply raises the question of what makes two cases ‘relevantly’ the same.
It is agreed on all sides that if two cases are the same then the precedent applies, whereas if they are different it does not.
What makes two cases the same, however, is a matter of considerable debate, and goes to the root of the question of the nature of precedent in legal reasoning.
In saying that two cases are the same, it cannot be that they are identical. It is obvious that no two situations are identical in every respect: they must differ at least in having occurred at different times and/or different places.
In practice the differences between any two cases will be much more significant than this, and yet they may—legally speaking—still be the same.
For this reason, theorists often speak of two cases being the same in ‘all relevant respects’.
Which of course simply raises the question of what makes two cases ‘relevantly’ the same.
This problem is easier to understand if a number of distinct aspects of
legal cases are taken into account.
Most cases do not create precedents: they turn on a dispute about the facts—who did what, when, and to whom.
In these cases the job of the court is to decide on the evidence before it whose version of the facts to endorse.
The parties in such cases agree about the law that applies to their dispute, they simply disagree about what actually happened. In other cases there can be a dispute over the applicable law—one side claiming that on the facts the appropriate law supports a decision in their favour and the other side disputing this account of the law and arguing that on those facts the law supports a decision in favour of them. (It goes without saying that there are also cases with disputes over both the facts and the law.) Precedents are those cases which require the courts to resolve a dispute over the law.
Most cases do not create precedents: they turn on a dispute about the facts—who did what, when, and to whom.
In these cases the job of the court is to decide on the evidence before it whose version of the facts to endorse.
The parties in such cases agree about the law that applies to their dispute, they simply disagree about what actually happened. In other cases there can be a dispute over the applicable law—one side claiming that on the facts the appropriate law supports a decision in their favour and the other side disputing this account of the law and arguing that on those facts the law supports a decision in favour of them. (It goes without saying that there are also cases with disputes over both the facts and the law.) Precedents are those cases which require the courts to resolve a dispute over the law.
A precedent is the decision on the law in a case before a court or some
similar legal decision-maker such as a tribunal. Paradigmatically in Common Law
legal systems a judicial decision is given in a judgment which has five aspects
to it:
-- a recitation of the facts of the case, i.e., an account of what happened[4];
-- an identification of the legal issue—the disputed question of law—which the court is being asked to resolve;
-- the reasoning over the appropriate resolution of that issue;
-- the ruling resolving the issue put before the court, e.g. that in these circumstances the defendant has breached a contract, or does not owe the plaintiff a duty of care, or holds the property on trust for a third party, or made a decision contrary to natural justice; and
-- the result or outcome of the case, i.e., which party succeeded in the action; which follows from (d).
-- a recitation of the facts of the case, i.e., an account of what happened[4];
-- an identification of the legal issue—the disputed question of law—which the court is being asked to resolve;
-- the reasoning over the appropriate resolution of that issue;
-- the ruling resolving the issue put before the court, e.g. that in these circumstances the defendant has breached a contract, or does not owe the plaintiff a duty of care, or holds the property on trust for a third party, or made a decision contrary to natural justice; and
-- the result or outcome of the case, i.e., which party succeeded in the action; which follows from (d).
(For a more detailed discussion, see MacCormick 1987, 170ff.)
To take an example, the court may be faced with a case in which the trustee of property held on behalf of the plaintiff has wrongfully transferred that property to the defendant.
The plaintiff sues the defendant to recover the property which was transferred in breach of trust.
The plaintiff argues that since
(i) the defendant has received trust property
(ii) in breach of trust and
(iii) has not paid for the property, she should restore the property to the trust.
The defendant argues, on the other hand, that since (iv) the trustee had a good title to the property, (v) the power to transfer it and (vi) the defendant acted in good faith, unaware of the breach of trust, she is entitled to retain it.
The court will assess the situation and may rule that factors (i)–(iii) do give the plaintiff a good action, i.e., that a recipient of trust property transferred in breach of trust who has not paid for the property must restore it. In its reasoning the court will explain why the fact that the defendant received the property as a gift means that it should be restored to the trust, despite the trustee having the legal power to transfer the title.
To take an example, the court may be faced with a case in which the trustee of property held on behalf of the plaintiff has wrongfully transferred that property to the defendant.
The plaintiff sues the defendant to recover the property which was transferred in breach of trust.
The plaintiff argues that since
(i) the defendant has received trust property
(ii) in breach of trust and
(iii) has not paid for the property, she should restore the property to the trust.
The defendant argues, on the other hand, that since (iv) the trustee had a good title to the property, (v) the power to transfer it and (vi) the defendant acted in good faith, unaware of the breach of trust, she is entitled to retain it.
The court will assess the situation and may rule that factors (i)–(iii) do give the plaintiff a good action, i.e., that a recipient of trust property transferred in breach of trust who has not paid for the property must restore it. In its reasoning the court will explain why the fact that the defendant received the property as a gift means that it should be restored to the trust, despite the trustee having the legal power to transfer the title.
The identification of the subset of factors (i)–(iii) that constitute the
ruling is not always a straightforward task.
This has to be determined from construing the judgment as a whole in the context of the area of law with which it deals.
In particular it can be difficult to ascertain the appropriate level of abstraction of the descriptions of factors (i)–(iii).
A person is made ill by drinking an opaque bottle of ginger beer containing a decomposing snail.
The manufacturer of the bottle is held to be liable to the person made ill, despite the absence of any contract between her and the manufacturer.
What is the key characterisation of the vehicle of harm on these facts?
The bottle of ginger beer is a beverage, but it is also a consumable, an article for human use and something capable of causing injury if negligently produced.
Generally the judgment needs to be read as a whole to determine the appropriate level: in particular the court's reasoning will tend to support one level of generality over another.
In some cases, however, the level of generality will not be clear and it will not be possible to give a very precise account of the ruling.
In other cases the category may be incompletely characterised: there will be examples of items falling within the category but no general characterisation of it.
This has to be determined from construing the judgment as a whole in the context of the area of law with which it deals.
In particular it can be difficult to ascertain the appropriate level of abstraction of the descriptions of factors (i)–(iii).
A person is made ill by drinking an opaque bottle of ginger beer containing a decomposing snail.
The manufacturer of the bottle is held to be liable to the person made ill, despite the absence of any contract between her and the manufacturer.
What is the key characterisation of the vehicle of harm on these facts?
The bottle of ginger beer is a beverage, but it is also a consumable, an article for human use and something capable of causing injury if negligently produced.
Generally the judgment needs to be read as a whole to determine the appropriate level: in particular the court's reasoning will tend to support one level of generality over another.
In some cases, however, the level of generality will not be clear and it will not be possible to give a very precise account of the ruling.
In other cases the category may be incompletely characterised: there will be examples of items falling within the category but no general characterisation of it.
This point brings out an important aspect of the study of precedent.
Lawyers are mostly preoccupied with two issues.
(1) the question of how to determine what a precedent is authority for, e.g. how to characterise the ruling in the case (beverage? consumable? article?), or how to deal with cases where there is no single majority judgment in favour of the result, or how to treat cases which give two alternative bases for the decision.
(2) the question of when a court will be willing to overrule its own prior decisions.
The most interesting philosophical questions, however, concern how precedents operate when, as is often the case, there is no doubt about what the precedent is authority for, and the later court is not free (or is unwilling) to overrule the earlier decision.
Lawyers are mostly preoccupied with two issues.
(1) the question of how to determine what a precedent is authority for, e.g. how to characterise the ruling in the case (beverage? consumable? article?), or how to deal with cases where there is no single majority judgment in favour of the result, or how to treat cases which give two alternative bases for the decision.
(2) the question of when a court will be willing to overrule its own prior decisions.
The most interesting philosophical questions, however, concern how precedents operate when, as is often the case, there is no doubt about what the precedent is authority for, and the later court is not free (or is unwilling) to overrule the earlier decision.
There are three ways in which it has been argued that precedents should be
understood.
(1) as laying down rules
(2) as the application of underlying principles, and
(3) as a decision on the balance of reasons.
(1) as laying down rules
(2) as the application of underlying principles, and
(3) as a decision on the balance of reasons.
On the first approach precedents operate by laying down rules which later
courts are then bound to apply to the facts before them.
In holding that (i)–(iii) were the crucial facts for the resolution of the case, the court is creating a rule that whenever trust property is transferred in breach of trust to a volunteer (i.e., one who does not pay for the property), the volunteer must restore the property to the beneficiary.
The case decides a particular dispute, but the court creates a rule to deal with that type of dispute and applies it to the case at hand. On this view, then, precedents are akin to statutes in that they lay down rules which apply to later cases whose facts satisfy the conditions for application.
In holding that (i)–(iii) were the crucial facts for the resolution of the case, the court is creating a rule that whenever trust property is transferred in breach of trust to a volunteer (i.e., one who does not pay for the property), the volunteer must restore the property to the beneficiary.
The case decides a particular dispute, but the court creates a rule to deal with that type of dispute and applies it to the case at hand. On this view, then, precedents are akin to statutes in that they lay down rules which apply to later cases whose facts satisfy the conditions for application.
In favour of this interpretation of precedent is the distinction drawn in
legal practice between what is known as the ‘ratio decidendi’ of a case and
‘obiter dicta’.
The ratio of a case represents the ‘holding’ or ‘ruling’, i.e., the proposition of law for which the case is authority—it is the aspect of the case which is binding on later courts.
Obiter dicta, by contrast, represent other statements and views expressed in the judgment which are not binding on later courts.
On this view of precedent, the rule laid down in the earlier case is represented by the ratio.
The ratio of a case represents the ‘holding’ or ‘ruling’, i.e., the proposition of law for which the case is authority—it is the aspect of the case which is binding on later courts.
Obiter dicta, by contrast, represent other statements and views expressed in the judgment which are not binding on later courts.
On this view of precedent, the rule laid down in the earlier case is represented by the ratio.
There are a range of criticisms of the rule-making account of precedent
which argue that it does not fit legal practice very well.
Two issues stand out:
(i) the form in which judgments are presented, and
(ii) the practice of distinguishing.
Two issues stand out:
(i) the form in which judgments are presented, and
(ii) the practice of distinguishing.
Although the idea of the ratio decidendi is a staple of legal practice, it
is notable that it is a construct from a precedent rather than an explicit
feature of most legal judgments.
Judgments are highly discursive texts and very rarely identify their own rationes.
What is more, even if a court chooses to explicitly formulate the ratio of its decision, this precise formulation is not itself regarded as binding on later courts.
Judgments are highly discursive texts and very rarely identify their own rationes.
What is more, even if a court chooses to explicitly formulate the ratio of its decision, this precise formulation is not itself regarded as binding on later courts.
It is often said that this creates a marked contrast with statutes, where a
canonical formulation of the legal rule being laid down is provided.
Given the flexibility open to later courts to determine the ratio of the earlier decision, it is misleading to think that decisions lay down binding rules for later courts.
However, although there is a contrast with legislation here, it can be exaggerated.
In both situations the propositions of law for which a case or statutory provision is authority must be derived from the case or statute and is not identical with the text of either.
The real difference between precedent and statute lies in the fact that in the case of statutes legal systems have elaborate conventions of interpretation to assist in the process of deriving the law from a legislative text, whereas in the case of precedents they do not.
But this simply shows that the law derived from precedents may be vaguer and more indeterminate than that derived from (many) statutes; it does not establish that precedents do not create legal rules.
Given the flexibility open to later courts to determine the ratio of the earlier decision, it is misleading to think that decisions lay down binding rules for later courts.
However, although there is a contrast with legislation here, it can be exaggerated.
In both situations the propositions of law for which a case or statutory provision is authority must be derived from the case or statute and is not identical with the text of either.
The real difference between precedent and statute lies in the fact that in the case of statutes legal systems have elaborate conventions of interpretation to assist in the process of deriving the law from a legislative text, whereas in the case of precedents they do not.
But this simply shows that the law derived from precedents may be vaguer and more indeterminate than that derived from (many) statutes; it does not establish that precedents do not create legal rules.
An integral part of legal reasoning using precedents is the practice of
distinguishing.
Distinguishing involves a precedent not being followed even though the facts of the later case fall within the scope of the ratio of the earlier case.
As the later case falls within the scope of the earlier ratio (i.e., within the scope of the rule), one might expect that the decision in the later case must be the same (unless the court has the power to overrule the earlier case and decides to do so).
In legal reasoning using precedents, however, the later court is free not to follow the earlier case by pointing to some difference in the facts between the two cases, even though those facts do not feature in the ratio of the earlier case.
Distinguishing involves a precedent not being followed even though the facts of the later case fall within the scope of the ratio of the earlier case.
As the later case falls within the scope of the earlier ratio (i.e., within the scope of the rule), one might expect that the decision in the later case must be the same (unless the court has the power to overrule the earlier case and decides to do so).
In legal reasoning using precedents, however, the later court is free not to follow the earlier case by pointing to some difference in the facts between the two cases, even though those facts do not feature in the ratio of the earlier case.
Take the trust example: in a later case the recipient of trust property may
not have paid for the property, but may have relied on the receipt in entering
into another arrangement (e.g. in using the property as security for a loan).
The later court may hold that the recipient is entitled to retain the property and justify its decision by ruling that where
(i) the defendant has received trust property
(ii) in breach of trust and
(iii) has not paid for the property, but has
(vii) relied upon the receipt to disadvantageously alter her position, then the defendant is entitled to retain the property.
This result would still leave the beneficiary with a claim against the trustee for the value of the property.
The later court may hold that the recipient is entitled to retain the property and justify its decision by ruling that where
(i) the defendant has received trust property
(ii) in breach of trust and
(iii) has not paid for the property, but has
(vii) relied upon the receipt to disadvantageously alter her position, then the defendant is entitled to retain the property.
This result would still leave the beneficiary with a claim against the trustee for the value of the property.
The effect of distinguishing, then, is that the later court is free not to
follow a precedent that, prima facie, applies to it, by making a ruling which is
narrower than that made in the precedent case. The only formal constraints on
the later court are that:
(1) in formulating the ratio of the later case, the factors in the ratio of the earlier case (i.e., (i)–(iii)) must be retained, and
(2) the ruling in the later case must be such that it would still support the result reached in the precedent case.
In short, the ruling in the second case must not be inconsistent with the result in the precedent case, but the court is otherwise free to make a ruling narrower than that in the precedent.
Hence the more accurate statements of the doctrine of precedent are to the effect that a later court must either follow or distinguish a binding precedent—a disjunctive obligation.
(1) in formulating the ratio of the later case, the factors in the ratio of the earlier case (i.e., (i)–(iii)) must be retained, and
(2) the ruling in the later case must be such that it would still support the result reached in the precedent case.
In short, the ruling in the second case must not be inconsistent with the result in the precedent case, but the court is otherwise free to make a ruling narrower than that in the precedent.
Hence the more accurate statements of the doctrine of precedent are to the effect that a later court must either follow or distinguish a binding precedent—a disjunctive obligation.
At a formal level the practice of distinguishing can be reconciled with the
view that rationes are rules by arguing that later courts have the power to
modify the rule in the earlier case.
An analogy can be drawn to the power to overrule earlier decisions: just as judges can overrule earlier cases, they can also modify earlier law, thereby paralleling the power of legislators to either repeal or amend the law. The analogy, however, is very imperfect.
There are two difficulties:
Common Lawyers do not conceptualise overruling and distinguishing in this parallel way.
The rationale for a power with this particular scope is unclear.
An analogy can be drawn to the power to overrule earlier decisions: just as judges can overrule earlier cases, they can also modify earlier law, thereby paralleling the power of legislators to either repeal or amend the law. The analogy, however, is very imperfect.
There are two difficulties:
Common Lawyers do not conceptualise overruling and distinguishing in this parallel way.
The rationale for a power with this particular scope is unclear.
On the first point, Common Lawyers ordinarily think of precedents as
constituting the law up and until they are overruled.
Once overruled the later decision is (normally) given retroactive effect, so the law is changed for the past as well as the future. But when a case is distinguished it is not often thought that the law was one thing until the later decision of a court, and now another thing.
The law will be regarded prior to the later decision as already subject to various distinctions not mentioned by the earlier court. Indeed part of the skill of a good common lawyer is grasping the law as not stated by the earlier court: learning that cases are ‘distinguishable’ is a staple part of common law education, and no common lawyer would be competent who did not appreciate that the law was not to be identified simply with the ratio of an earlier decision.
Common lawyers do not, then, conceptualise distinguishing along lines analogous to overruling.
Once overruled the later decision is (normally) given retroactive effect, so the law is changed for the past as well as the future. But when a case is distinguished it is not often thought that the law was one thing until the later decision of a court, and now another thing.
The law will be regarded prior to the later decision as already subject to various distinctions not mentioned by the earlier court. Indeed part of the skill of a good common lawyer is grasping the law as not stated by the earlier court: learning that cases are ‘distinguishable’ is a staple part of common law education, and no common lawyer would be competent who did not appreciate that the law was not to be identified simply with the ratio of an earlier decision.
Common lawyers do not, then, conceptualise distinguishing along lines analogous to overruling.
On the second point, one of the peculiarities of distinguishing is that it
cuts across the normal justifications for having rules, namely to have a class
of cases treated in a certain way despite individual variation between them,
with attendant gains in predictability and transparency in the decision-making
process.
Instead, the later court is free to avoid the result indicated by the earlier ratio so long as it can find some difference in facts between the two cases that narrows the earlier ratio while still supporting the result in the earlier case. What is more, this power is not merely given to courts of the same level of authority as the one laying down the precedent (as is the case with overruling), but is given to every court lower in the judicial hierarchy.
So the Court of Appeal cannot overrule a decision of the House of Lords (nor even its own decisions ordinarily), but it is free to distinguish a decision of the House of Lords even when the case before it falls within the ratio of the House of Lords decision.
So on the rule-making view of precedent lower courts have the power to narrow the rules laid down by higher courts, just so long as the narrower rule would still support the result reached in the earlier case. It is unclear why lower courts should be given a power to narrow rulings of higher courts in this particularly circumscribed manner.
Instead, the later court is free to avoid the result indicated by the earlier ratio so long as it can find some difference in facts between the two cases that narrows the earlier ratio while still supporting the result in the earlier case. What is more, this power is not merely given to courts of the same level of authority as the one laying down the precedent (as is the case with overruling), but is given to every court lower in the judicial hierarchy.
So the Court of Appeal cannot overrule a decision of the House of Lords (nor even its own decisions ordinarily), but it is free to distinguish a decision of the House of Lords even when the case before it falls within the ratio of the House of Lords decision.
So on the rule-making view of precedent lower courts have the power to narrow the rules laid down by higher courts, just so long as the narrower rule would still support the result reached in the earlier case. It is unclear why lower courts should be given a power to narrow rulings of higher courts in this particularly circumscribed manner.
Two ways in which distinguishing can be made less idiosyncratic are these:
(a) to argue that the later court is restricted to making a modification which the earlier court would have made if confronted with the current facts, i.e., that distinguishing is a form of reinterpretation of the original ratio; or
(b) to argue that there is a presumption against distinguishing.
Each of these approaches echo forms of legal reasoning found in statutory construction. The first, in asking what the earlier court would have done, assimilates the task of distinguishing to that of determining the law-maker's intent behind their ruling.
This is parallel to the practice of interpreting statutes in terms of legislative intent.
The alternative approach of there being a presumption against distinguishing parallels the creation of exceptions to statutory rules.
(a) to argue that the later court is restricted to making a modification which the earlier court would have made if confronted with the current facts, i.e., that distinguishing is a form of reinterpretation of the original ratio; or
(b) to argue that there is a presumption against distinguishing.
Each of these approaches echo forms of legal reasoning found in statutory construction. The first, in asking what the earlier court would have done, assimilates the task of distinguishing to that of determining the law-maker's intent behind their ruling.
This is parallel to the practice of interpreting statutes in terms of legislative intent.
The alternative approach of there being a presumption against distinguishing parallels the creation of exceptions to statutory rules.
The problem with these two suggestions is that the practice of
distinguishing does not conform to either of these constraints: while courts do
consider the earlier decision in order to see if the ratio can be reinterpreted,
they also introduce distinctions without recourse to the earlier court's views;
and they do not typically approach the task of distinguishing as if there is a
presumption against it.
As a matter of legal practice, then, there are no legal restrictions of this kind on the later court. Distinguishing, then, does not seem to fit easily with the understanding of rationes as creating binding legal rules. (See also Perry 1987, 237–9 on distinguishing.)
As a matter of legal practice, then, there are no legal restrictions of this kind on the later court. Distinguishing, then, does not seem to fit easily with the understanding of rationes as creating binding legal rules. (See also Perry 1987, 237–9 on distinguishing.)
A third way which purports to deal with the problem of distinguishing on
the rule model is to argue that the ‘rule’ for which the decision is binding is
not the precedent court's ruling, but something narrower—the ‘material facts’
that were ‘necessary’ for the result of the case. (See Goodhart 1930, 1959; and
see also Burton 1995, 25–58, 60–5 on ‘case-specific facts’ and Eisenberg 1988,
51–4 on ‘minimalist’ and ‘result-centred’ techniques.)
This approach makes use of the fact that decisions do not provide canonical formulations of the ratio to argue that the ratio is not to be identified with the court's stated ruling on the issue. The effect of such an approach is to narrow what is regarded as binding in the case to those facts which were crucial to the actual outcome, rather than the stated ruling applied to those facts.
The difficulties with this approach are three-fold.
This approach makes use of the fact that decisions do not provide canonical formulations of the ratio to argue that the ratio is not to be identified with the court's stated ruling on the issue. The effect of such an approach is to narrow what is regarded as binding in the case to those facts which were crucial to the actual outcome, rather than the stated ruling applied to those facts.
The difficulties with this approach are three-fold.
(1) it goes against general legal practice, which usually does identify the ratio with the ruling made by the precedent court.
(2) if the precedent court's own characterisation of its ruling is
abandoned, there is no coherent way to settle on the ‘material facts’.
Take the case of the recipient of trust property transferred in breach of trust.
A key aspect of the facts is that the recipient did not pay for the property. But why is this ‘material’? If the court's own reasoning is put to one side, is it because no consideration was given (so had a token been provided that would have been sufficient); or that inadequate consideration was provided (so more than a token would be necessary); or that a reasonable price was not paid; or that the price was not what the beneficiary would have been willing to accept for the transfer; or that the price is not the best which the trustee could have obtained on the open market?
All of the preceding descriptions of the facts are true, but which is ‘material’? The requirement for any of them would invalidate the transfer.
Take the case of the recipient of trust property transferred in breach of trust.
A key aspect of the facts is that the recipient did not pay for the property. But why is this ‘material’? If the court's own reasoning is put to one side, is it because no consideration was given (so had a token been provided that would have been sufficient); or that inadequate consideration was provided (so more than a token would be necessary); or that a reasonable price was not paid; or that the price was not what the beneficiary would have been willing to accept for the transfer; or that the price is not the best which the trustee could have obtained on the open market?
All of the preceding descriptions of the facts are true, but which is ‘material’? The requirement for any of them would invalidate the transfer.
Even if there is some way to characterise the ‘material’ facts, it does
not eliminate distinguishing. Take later trust case, for example, in which the
recipient has paid nothing for the trust property but has acted detrimentally in
reliance on the receipt.
The recipient is still a ‘volunteer’ who has not transferred anything to the trustee for the property, but there has been reliance upon the receipt.
This may well lead a later court to distinguish the earlier case, although the facts are otherwise identical to those in the original case. On the other hand, if the claim is that the precedent case is only binding when both
(a) the ‘material facts’ are present, and
(b) no other relevant facts are present, then it is no longer a ‘rule-based’ account of precedent—it is simply reasserting the minimal requirement that the decision in the later case must not be inconsistent with the result reached in the precedent case.
The recipient is still a ‘volunteer’ who has not transferred anything to the trustee for the property, but there has been reliance upon the receipt.
This may well lead a later court to distinguish the earlier case, although the facts are otherwise identical to those in the original case. On the other hand, if the claim is that the precedent case is only binding when both
(a) the ‘material facts’ are present, and
(b) no other relevant facts are present, then it is no longer a ‘rule-based’ account of precedent—it is simply reasserting the minimal requirement that the decision in the later case must not be inconsistent with the result reached in the precedent case.
A different response to the problem of distinguishing is to relocate the
binding force of precedents in the justification for the earlier decision,
rather than in the ruling itself.
This approach has three principal attractions. The first is that it explains the lengthy expositions of the reasoning for the result found in many decisions.
It is the reasons that contain the gist of the decision, and so it is to this question that most attention is directed by the courts in justifying their decisions. Secondly, this accounts for the fact that courts do not bother (and indeed lack the power) to lay down a precise formulation of their rationes. The ratio does not lay down a rule which must be followed by later courts, but is simply a convenient short-hand way of referring to the overall effect of the principles justifying the result in the case (Perry 1987, 235, 239). Thirdly, and most significantly, this approach provides a natural explanation for the practice of distinguishing. A later case is distinguishable where the justification for the result in the precedent does not apply to the different facts of that case, even if it might seem to fall within the ratio of the decision.
This approach has three principal attractions. The first is that it explains the lengthy expositions of the reasoning for the result found in many decisions.
It is the reasons that contain the gist of the decision, and so it is to this question that most attention is directed by the courts in justifying their decisions. Secondly, this accounts for the fact that courts do not bother (and indeed lack the power) to lay down a precise formulation of their rationes. The ratio does not lay down a rule which must be followed by later courts, but is simply a convenient short-hand way of referring to the overall effect of the principles justifying the result in the case (Perry 1987, 235, 239). Thirdly, and most significantly, this approach provides a natural explanation for the practice of distinguishing. A later case is distinguishable where the justification for the result in the precedent does not apply to the different facts of that case, even if it might seem to fall within the ratio of the decision.
Despite its attractions, the ‘underlying principles’ account faces three
major difficulties:
(i) the scope of distinguishing;
(ii) accounting for the role played by rationes; and
(iii) maintaining the distinction between precedent and analogy.
The initial difficulty arises from the fact that distinguishing is not restricted to the application of the justification provided by the earlier decision.
Any good argument can provide the basis for distinguishing, for example by showing that the novel facts in the later case provide considerations which outweigh the original justification: it is not that the original justification is inapplicable to the novel facts, it is simply that those facts raise additional considerations that are more compelling. So later courts go beyond what was done in the earlier decision in determining whether to distinguish the later case.
(i) the scope of distinguishing;
(ii) accounting for the role played by rationes; and
(iii) maintaining the distinction between precedent and analogy.
The initial difficulty arises from the fact that distinguishing is not restricted to the application of the justification provided by the earlier decision.
Any good argument can provide the basis for distinguishing, for example by showing that the novel facts in the later case provide considerations which outweigh the original justification: it is not that the original justification is inapplicable to the novel facts, it is simply that those facts raise additional considerations that are more compelling. So later courts go beyond what was done in the earlier decision in determining whether to distinguish the later case.
One possible line of response to these difficulties is to abandon the idea
that what is binding is the precedent court's justification for its decision.
After all, the standard view is that later courts are bound by the ruling in the
precedent, not its reasoning.
Instead, it is argued, whether the earlier decision must be followed in the later case turns on applying the best justification for the earlier decision.
But not the best justification for that decision, taken in isolation. Rather, what is binding in law is the set of principles which best fit and justify the totality of the results in past decisions (e.g. Moore 1987, 201, 210; cf. Dworkin 1975, 110–23[10]).
From this perspective, distinguishing is not restricted to applying the earlier court's justification for its decision, but in applying the justifications for the doctrine of which that decision forms a part.[11]
Instead, it is argued, whether the earlier decision must be followed in the later case turns on applying the best justification for the earlier decision.
But not the best justification for that decision, taken in isolation. Rather, what is binding in law is the set of principles which best fit and justify the totality of the results in past decisions (e.g. Moore 1987, 201, 210; cf. Dworkin 1975, 110–23[10]).
From this perspective, distinguishing is not restricted to applying the earlier court's justification for its decision, but in applying the justifications for the doctrine of which that decision forms a part.[11]
The second difficulty, however, applies to both versions of this approach,
viz. accounting for the role played by rationes.
The practice of precedent involves later courts being bound to either follow or distinguish the earlier decision, but only if the facts of the later case fall within the terms of the ratio.
The ratio plays an indispensable role in fixing the scope of the later court's duty to follow or distinguish—it is only if the facts of the later case fall within the ratio that this question arises. This role is not appropriately captured by arguing that it is the justifications, and not the ratio, which are binding.[12] (Cf. Moore 1987, 185–7, 211–3).
What the approach does help to highlight, on the other hand, is the role played in the practice of precedent by the justification for decisions. As noted above, determining the ratio is not a mechanical exercise: it involves understanding what was decided in a case—by reference to what was said in the judgment, earlier cases, and the general understanding of that area of the law.
The precedent court's own justification for its decision plays an important role in determining the level of abstraction of the factors in the ratio, and for providing arguments for a narrower or wider reading of those factors.[13]
The practice of precedent involves later courts being bound to either follow or distinguish the earlier decision, but only if the facts of the later case fall within the terms of the ratio.
The ratio plays an indispensable role in fixing the scope of the later court's duty to follow or distinguish—it is only if the facts of the later case fall within the ratio that this question arises. This role is not appropriately captured by arguing that it is the justifications, and not the ratio, which are binding.[12] (Cf. Moore 1987, 185–7, 211–3).
What the approach does help to highlight, on the other hand, is the role played in the practice of precedent by the justification for decisions. As noted above, determining the ratio is not a mechanical exercise: it involves understanding what was decided in a case—by reference to what was said in the judgment, earlier cases, and the general understanding of that area of the law.
The precedent court's own justification for its decision plays an important role in determining the level of abstraction of the factors in the ratio, and for providing arguments for a narrower or wider reading of those factors.[13]
This is related to another point: if the underlying justification for a
precedent is binding then it undermines the distinction between arguments from
precedent and those by analogy. The ratio of the precedent sets the outer limit
of what is binding on later courts—i.e., what a later court is bound to either
follow or distinguish. Analogies (as will be argued below) are grounded in the
underlying rationale for earlier decisions, but they do not bind later courts.
If the underlying justification of precedents were binding, rather than the ratio, then analogies would be binding and legal reasoning would have a different shape.
If the underlying justification of precedents were binding, rather than the ratio, then analogies would be binding and legal reasoning would have a different shape.
If a precedent is not laying down a rule, nor binding in terms of its
underlying justification, how should it be regarded?
One alternative is to think of the precedent as representing a decision on the balance of reasons in the individual case before the court that later courts are required to treat as correctly decided (see Lamond 2005). The precedent court took a range of facts into account in reaching its decision. Those facts—facts such as the breach of trust, the trustee having power to transfer the property, the recipient being a volunteer, and the good faith of the recipient—ground reasons for reaching some particular legal conclusion. On this approach, what the ratio provides is a statement of the factors which the court regarded as providing the reasons that were crucial for reaching its result. So the ratio represents the view of the court that those facts spoke in favour of the outcome, and that they were not defeated by any combination of the other factors present in the case. For example, the court decides that the recipient of trust property must hold the property on trust if they are a volunteer even though they acted in good faith. In reaching its conclusion the court must deliberate on the competing merits of these two parties and decide which is better supported. Both parties were ignorant of the dishonesty or incompetence of the trustee, so neither is favoured on that score; the recipient has acquired property which the trustee did have the legal power (though not the right) to transfer, so upholding the security of property transactions favours allowing the innocent recipient to obtain the complete title to the property (leaving the beneficiary with a personal claim for damages against the defaulting trustee); the principle that no-one can transfer a greater interest than they possess favours the beneficiary. Other considerations favour one or other of the parties. In making its ruling, the court concludes that in the circumstances of the case before it the merits favour the beneficiary of the trust rather than the recipient.
One alternative is to think of the precedent as representing a decision on the balance of reasons in the individual case before the court that later courts are required to treat as correctly decided (see Lamond 2005). The precedent court took a range of facts into account in reaching its decision. Those facts—facts such as the breach of trust, the trustee having power to transfer the property, the recipient being a volunteer, and the good faith of the recipient—ground reasons for reaching some particular legal conclusion. On this approach, what the ratio provides is a statement of the factors which the court regarded as providing the reasons that were crucial for reaching its result. So the ratio represents the view of the court that those facts spoke in favour of the outcome, and that they were not defeated by any combination of the other factors present in the case. For example, the court decides that the recipient of trust property must hold the property on trust if they are a volunteer even though they acted in good faith. In reaching its conclusion the court must deliberate on the competing merits of these two parties and decide which is better supported. Both parties were ignorant of the dishonesty or incompetence of the trustee, so neither is favoured on that score; the recipient has acquired property which the trustee did have the legal power (though not the right) to transfer, so upholding the security of property transactions favours allowing the innocent recipient to obtain the complete title to the property (leaving the beneficiary with a personal claim for damages against the defaulting trustee); the principle that no-one can transfer a greater interest than they possess favours the beneficiary. Other considerations favour one or other of the parties. In making its ruling, the court concludes that in the circumstances of the case before it the merits favour the beneficiary of the trust rather than the recipient.
What is the difference between this approach and that in terms of
precedents laying down rules? It lies in the fact that instead of the ratio
representing a rule which presumptively settles the disposition of later cases
whose facts fall within its scope, it provides a pro tanto justification for
such a disposition, i.e., other things being equal this is how the later case
should be decided. And it is this that provides a natural explanation for the
practice of distinguishing. The correct statement of the doctrine of precedent
is that later courts are bound by cases—not simply by rationes—and bound to
either follow or distinguish them. So later courts whose case-facts fall within
the scope of the ratio must consider the precedent, but do so in order to
consider whether the differences in facts between the later and the precedent
cases justify deciding the cases differently. What the later court cannot do, on
the other hand, is to distinguish on the basis of factors that were present in
the earlier case (even if they were not part of the decision's ratio), because
to do so would be to imply that the earlier decision had reached the wrong
conclusion on the balance of reasons. A later court cannot treat the case as
wrongly decided, unless it is able and willing to overrule it
The idea that a precedent is reaching a conclusion on the balance of
reasons in the particular case at hand makes sense of a number of other features
of common law judgments. It explains the practice of providing elaborate
accounts of the circumstances of the case, even though only a small subset of
those circumstances matter to the ratio, since they were the group of factors
that the court considered in reaching its decision. It is also consistent with
the lengthy discussions of the reasons for the conclusion, and the lack of
interest on the part of courts in providing a carefully worded formulation of
the ratio: what matters is the substance of the factors considered in reaching
the decision, not the particular language in which they are couched.
The main challenge for this account of precedent lies in explaining when a
later court is bound to follow a precedent which it regards as having been
incorrectly decided. In the case of the trust property, the later court may
think the precedent court mistaken to have concluded that the recipient must
return the property to the beneficiary. May a later court avoid the result of
the precedent by pointing to any general factual difference between the cases
(e.g. this is real property rather than personal property, this is an implied
rather than an express trust), and distinguish the precedent by stating a
narrower ratio? After all, the balance of reasons never supported the precedent
in the first place, so shouldn't it be confined to the narrowest possible
statement of its facts? In which case precedents seem to have very little
binding force indeed.
One obvious possibility for avoiding this problem would be to ask how the
precedent court would have assessed the facts in later case. But although this
would be satisfactory in theory (if sometimes difficult in practice), it again
does not reflect legal practice. Courts sometimes approach the question in this
way, but often they do not, and there is no legal requirement that they do so. A
better response is this: the basic common law requirement in stare decisis is to
treat earlier cases as correctly decided. A case may be distinguished, but only
if that distinction does not imply that the precedent was wrongly decided. So in
the later case the court must decide whether the factual difference (real versus
personal property, implied versus express trust) provides a better justification
against the earlier decision than the facts of that case on their own. If it
does, then the court may distinguish (citing that differences with the original
case), since that does not imply that precedent was mistaken. If not—because
real property or implied trusts raise no special considerations in this
context—then the precedent must be followed. This approach, of course, assumes
that it is possible to make these sorts of comparative judgements (for arguments
that this is not generally possible see Alexander 1989, 34–7).
Most discussions of precedent focus on the justifications for having a
doctrine of stare decisis by which later courts are bound to follow earlier
decisions. There is, of course, a prior question of why the decisions of courts
should be regarded as making law at all. In some Civilian legal systems, such as
the French, the official view is that court decisions do not make law, they
merely involve the application of the law. This follows from a straightforward
understanding of the separation of powers: the responsibility of the legislator
is to make law, the responsibility of the judiciary is to faithfully apply the
law made by the legislator. For the courts to make law would be to usurp the
legislative function, and to usurp a function to which the courts have no
legitimate claim. One distinctive feature of Common Law systems is the existence
of central areas of law that have no legislative foundations—such as contract,
tort, trusts, and personal property. All of these areas have seen legislative
intervention, but most Common Law jurisdictions still leave them on a
non-statutory footing. Here the decisions of the courts are the basis of the
law.
In practice no modern legal system has functioned without the decisions of
the courts playing at least an auxiliary role in settling the content of the
law. To take one well-known example, in France the law of civil wrongs (torts,
delicts) is based upon five relatively short articles of the Code Civil (§§
1382–1386). Formally, the law is found in those five articles, and a court
decision is legally flawed if it does not cite at least one of them as the basis
for its ruling. But there is a vast body of cases interpreting and applying
those articles, and these cases are regularly cited before the courts to assist
them in reaching their decisions, even though judgments themselves do not
mention earlier cases. In substance, then, if not in form, this area is partly
constituted by judge-made law.
So one question that can be raised about precedent is why it is justifiable
for the decisions of courts to be treated in this way at all, i.e., for them to
help constitute the law. There is a more specialised question, however. In the
Common Law at least, the doctrine of stare decisis requires later courts to
follow earlier decisions even if they were wrongly decided. To say that a case
was ‘wrongly decided’ is to say that the legally permissible reasons relevant to
the case did not, all things considered, support the conclusion reached by the
court. It should be emphasised that such a conclusion depends upon and is
relative to the context provided by existing legal doctrine. Take the question
of whether parents should be able to recover for the cost of raising a healthy
child when it has been born as a result of a negligently performed sterilisation
operation on one of the parents. In some legal systems such costs are
recoverable, whereas in others they are not. Here it is quite possible that
these conflicting decisions are both correct, in the sense that each is correct
within its own doctrinal context. So whether a decision is wrong is not a
question of how the case ought to be decided without any reference to the law,
but whether it goes against the merits of the legally relevant reasons.
The doctrine of precedent thus raises two justificatory issues: (a) why
treat court decisions as partly constituting the law, and (b) why require later
courts to follow erroneous decisions of earlier courts?
The most influential arguments responding to these issues are based upon considerations of:
1.consistency
2.expectations
3.replicability
4.the need for law-making
The most influential arguments responding to these issues are based upon considerations of:
1.consistency
2.expectations
3.replicability
4.the need for law-making
The argument from consistency is related to arguments in favour of ‘formal’
justice, i.e., that two cases which are the same (in relevant respects) should
be treated in the same way. It would simply be inconsistent to treat them
differently. In the case of precedent this argument is said to favour following
the earlier case: assuming that one cannot change the earlier decision (because
it is too late to appeal, or the party to the case has reasonably relied upon
it, etc), the only way to ensure consistency is for later decision-makers to
treat the earlier decision as a precedent. The claim of consistency is also
sometimes put in terms of ‘equality’: to treat the later case differently to the
first would be to fail to treat the parties before the courts equally.
This argument is made independently of other concerns such as parties' expectations or community perceptions of the court process or the problem of moral disagreement. Arguments of this kind certainly have weight in some circumstances. If a legal system is morally legitimate and has authority over those subject to it, then it is inconsistent for one person to be treated less or more favourably by the law than another person whose situation is legally indistinguishable.
Other things being equal, legal decisions should be consistent across time and/or decision-makers. A later case should only be treated differently to an earlier case when the law itself has been changed (by the legislator or the courts, including cases where the court overrules an earlier decision in reaching a decision on the case before it) So concerns of consistency provide some justification for treating earlier decisions as sources of law, rather than approaching each question anew when it arises again.
This argument is made independently of other concerns such as parties' expectations or community perceptions of the court process or the problem of moral disagreement. Arguments of this kind certainly have weight in some circumstances. If a legal system is morally legitimate and has authority over those subject to it, then it is inconsistent for one person to be treated less or more favourably by the law than another person whose situation is legally indistinguishable.
Other things being equal, legal decisions should be consistent across time and/or decision-makers. A later case should only be treated differently to an earlier case when the law itself has been changed (by the legislator or the courts, including cases where the court overrules an earlier decision in reaching a decision on the case before it) So concerns of consistency provide some justification for treating earlier decisions as sources of law, rather than approaching each question anew when it arises again.
This fact does not, however, support a doctrine of following earlier
decisions even when they are wrong, i.e., for having a strong practice of stare
decisis.
If the earlier decision was wrong then the person subject to it may have been treated more or less favourably than they should have been treated. If they were treated more favourably then clearly that should have been corrected (e.g. on appeal).
If it was not corrected then the person had an undeserved slice of good fortune. But that a mistake was made in the earlier case is not—in itself—an argument for repeating the mistake in the later case.
The first litigant did not deserve their outcome, even if for reasons of the finality of legal processes they are entitled to retain it. Equality does not demand the repetition of mistakes. On the other hand, if the original litigant was treated less favourably than they deserved then again that mistake should be corrected if it can be (e.g. by appeal, or, if that is too late, by remedial legislation or by executive action such as pardon or ex gratia payments), but it is no reason for treating a later litigant unfavourably as well. Taken in isolation from other considerations (such as expectations and predictability), equality does not support the bindingness of incorrect decisions.
If the earlier decision was wrong then the person subject to it may have been treated more or less favourably than they should have been treated. If they were treated more favourably then clearly that should have been corrected (e.g. on appeal).
If it was not corrected then the person had an undeserved slice of good fortune. But that a mistake was made in the earlier case is not—in itself—an argument for repeating the mistake in the later case.
The first litigant did not deserve their outcome, even if for reasons of the finality of legal processes they are entitled to retain it. Equality does not demand the repetition of mistakes. On the other hand, if the original litigant was treated less favourably than they deserved then again that mistake should be corrected if it can be (e.g. by appeal, or, if that is too late, by remedial legislation or by executive action such as pardon or ex gratia payments), but it is no reason for treating a later litigant unfavourably as well. Taken in isolation from other considerations (such as expectations and predictability), equality does not support the bindingness of incorrect decisions.
By contrast, arguments of equality bite where the court in the original
case was confronted with a situation where the correct outcome was
indeterminate, i.e., where more than one outcome was possible in light of the
legally permissible arguments.
This may be due to each outcome being equally well supported by reason, or by the outcomes being supported by different, incommensurable, values. In some of these cases the law has closure rules to settle the matter, e.g. in favour of criminal defendants, but in others there are no closure rules as to the appropriate substantive result to endorse. A possible illustration of such indeterminacy is the position of a person who quite innocently buys stolen goods. In some legal systems the purchaser acquires good title to those goods, whereas in others (such as the Common Law) she does not. Here, arguably, the merits of the two innocent parties (the purchaser and the original owner) are on a par, and all the law can do is choose which one is to prevail. So where an outcome is underdetermined there are arguments of equality for later courts following the earlier decision rather than adopting any of the other possible solutions. None of this, of course, is an argument for following earlier decisions that were wrongly decided, since these are cases where the earlier court did not make a mistake, but took one permissible option.
This may be due to each outcome being equally well supported by reason, or by the outcomes being supported by different, incommensurable, values. In some of these cases the law has closure rules to settle the matter, e.g. in favour of criminal defendants, but in others there are no closure rules as to the appropriate substantive result to endorse. A possible illustration of such indeterminacy is the position of a person who quite innocently buys stolen goods. In some legal systems the purchaser acquires good title to those goods, whereas in others (such as the Common Law) she does not. Here, arguably, the merits of the two innocent parties (the purchaser and the original owner) are on a par, and all the law can do is choose which one is to prevail. So where an outcome is underdetermined there are arguments of equality for later courts following the earlier decision rather than adopting any of the other possible solutions. None of this, of course, is an argument for following earlier decisions that were wrongly decided, since these are cases where the earlier court did not make a mistake, but took one permissible option.
Another common argument in favour of precedent is in terms of protecting
expectations: if an institution has dealt with an issue in one way in the past,
then that creates the expectation that it will do so in the future—an
expectation which people use to plan their lives and enjoy some control over
their situations.
So there are good reasons for an institution to follow its previous decisions (other things being equal), even if it turns out that they were mistaken.
So there are good reasons for an institution to follow its previous decisions (other things being equal), even if it turns out that they were mistaken.
The fundamental problem with this line of argument in the case of precedent
is that it suffers from a type of circularity. It is true that legal systems
that follow a practice of precedent create expectations that earlier decisions
will be followed in the future. But it is important to bear in mind that it is
only legitimate expectations which need to be considered in decision-making, not
any expectation which someone forms. The mere fact that a decision was made in
the past provides no reason in itself to expect that it will be followed in the
future, and certainly creates no entitlement to expect that it will be followed.
That a company orders stationery from a supplier at the start of the year may
raise a hope, and even possibly an expectation, that it will do so again later
in the year, but the supplier does not have a ‘legitimate’ expectation that it
will do so, and the company does not create a precedent for itself. Where there
is an institutional practice of following past decisions, on the other hand, the
reliance of those subject to future decisions may ground legitimate
expectations, but it is always open to the institution to announce that it will
no longer treat past decisions as binding and will, instead, decide each case on
its merits. Equally, it is a common occurrence in some institutional settings
where past decisions are followed for a decision to be made subject to the
proviso that it is ‘not setting a precedent’ for the future.
Whether a past decision creates legitimate expectations, therefore, depends
upon there being good independent reasons for the institution to follow its
earlier decisions, or upon the existence of a practice of doing so. But the
practice itself should only be maintained if there are good independent reasons
for having it: its mere existence cannot bootstrap a justification for the
maintenance of the practice.
The preceding arguments for precedent presuppose that decision-makers can
correctly ascertain the merits of the cases before them, but law of course
operates under non-ideal conditions where decision-makers make mistakes and
disagree among themselves about the merits of cases. In practice, the outcome of
a case may be uncertain not simply because the correct result is rationally
indeterminate, but because the decision-makers are fallible.
Given this, a practice of precedent in law, it can be argued, has a number of advantages due the fact that it may make institutional decisions replicable (see Eisenberg 1988, 10–12, 23–4, whose coinage it is; and Schauer 1987, 597–8).
That a decision is replicable refers to the fact that it is possible for others to make an informed judgement on the likelihood of a particular outcome, in the light of the relevant legal materials, the canons of reasoning used in a system, and an acquaintance with the general culture from which the decision-makers are drawn.
Replicability means that decisions are more predictable than if they were made de novo each time.
This, in turn, allows individuals to make plans that are consistent with the law and to avoid falling foul of it, and hence allows them to be guided by the law.
Given this, a practice of precedent in law, it can be argued, has a number of advantages due the fact that it may make institutional decisions replicable (see Eisenberg 1988, 10–12, 23–4, whose coinage it is; and Schauer 1987, 597–8).
That a decision is replicable refers to the fact that it is possible for others to make an informed judgement on the likelihood of a particular outcome, in the light of the relevant legal materials, the canons of reasoning used in a system, and an acquaintance with the general culture from which the decision-makers are drawn.
Replicability means that decisions are more predictable than if they were made de novo each time.
This, in turn, allows individuals to make plans that are consistent with the law and to avoid falling foul of it, and hence allows them to be guided by the law.
This provides a rationale both for treating earlier cases as contributing
to the law and for the doctrine of stare decisis. Other things being equal, it
is better if the law is predictable than if it is unpredictable.
It should be noted, however, that such a rationale does not necessarily support as strong a doctrine of precedent as that found in many Common Law jurisdictions.
The concern for predictability needs to be weighed against the moral desirability of the law in question. This would suggest that (a) in some circumstances lower courts should be allowed to depart from the decisions of higher courts where their view is that the earlier decision was (in the context of the relevant law) clearly morally undesirable, (b) giving greater freedom to courts to overrule their own decisions on the basis that there was a morally preferable decision (in that legal context).
It should be noted, however, that such a rationale does not necessarily support as strong a doctrine of precedent as that found in many Common Law jurisdictions.
The concern for predictability needs to be weighed against the moral desirability of the law in question. This would suggest that (a) in some circumstances lower courts should be allowed to depart from the decisions of higher courts where their view is that the earlier decision was (in the context of the relevant law) clearly morally undesirable, (b) giving greater freedom to courts to overrule their own decisions on the basis that there was a morally preferable decision (in that legal context).
A final justification for the doctrine of precedent is that it is desirable
to give courts the power to make law.
The thought here is that it is valuable for the courts to have the power to improve and supplement the law (Hart 1994, 135–6).
The assumption underlying this justification is that the law is sometimes incomplete and in need of being given greater specificity, or that it is erroneous and needs to be corrected. On this view the courts are analogous to delegated legislators: they have limited powers to make law within a broader framework of doctrine.
The thought here is that it is valuable for the courts to have the power to improve and supplement the law (Hart 1994, 135–6).
The assumption underlying this justification is that the law is sometimes incomplete and in need of being given greater specificity, or that it is erroneous and needs to be corrected. On this view the courts are analogous to delegated legislators: they have limited powers to make law within a broader framework of doctrine.
Although the need for law-making is often cited as a justification for
precedent, the substance of the argument normally boils down to concerns with
either equality or replicability. If the law has resolved an indeterminacy in
one (acceptable) way in the past, then precedent helps to ensure that future
litigants are treated as (un)favourably as past litigants, and so all are
treated equally. In addition, if the application of the law is indeterminate,
due to the type of value conflict involved or the nature of the decision-makers,
then it is desirable for judicial decisions to constitute precedents in order to
make the law more replicable in the future.
On the other hand, if the argument in favour of courts having law-making
power is that they can thereby improve the law, this is really an argument in
favour of having the power to overrule precedents, rather than an argument in
favour of precedent in the first place. Indeed, the need for a power to overrule
only arises if earlier decisions are binding even when mistaken, since later
courts could otherwise simply disregard decisions that were erroneous.
So the argument from law-making, when distinct from arguments from replicability and equality, is an argument for the power to overrule, rather than an argument for stare decisis itself.
So the argument from law-making, when distinct from arguments from replicability and equality, is an argument for the power to overrule, rather than an argument for stare decisis itself.
In conclusion, both equality and replicability provide arguments in favour
of judicial decisions constituting sources of law. And the value of
replicability also supports a doctrine of stare decisis by which later courts
are sometimes bound even by the erroneous decisions of earlier courts. This in
turn leads to the need for courts to have the power to overrule existing law, so
that there is scope for incorrect decisions to be reversed.
An analogical argument in legal reasoning is an argument that a case should
be treated in a certain way because that is the way a similar case has been
treated.
Arguments by analogy complement arguments from precedent in two ways:
(i) they are used when the facts of a case do not fall within the ratio of any precedent, in order to assimilate the result to that in the analogical case; and
(ii) they are used when the facts of a case do fall within the ratio of a precedent, as a basis for distinguishing the case at hand from the precedent. The force of an argument from analogy is different to that from precedent. An indistinguishable precedent must be followed unless the court has the power to overrule the earlier decision and does so. By contrast, arguments from analogy vary in their strengths: from very ‘close’ analogies (which strongly support a result) to more ‘remote’ analogies (which weakly support a result). Analogies do not bind: they must be considered along with other reasons in order to reach a result. That an analogy is rejected in one case does not preclude raising the analogy in a different case.
Arguments by analogy complement arguments from precedent in two ways:
(i) they are used when the facts of a case do not fall within the ratio of any precedent, in order to assimilate the result to that in the analogical case; and
(ii) they are used when the facts of a case do fall within the ratio of a precedent, as a basis for distinguishing the case at hand from the precedent. The force of an argument from analogy is different to that from precedent. An indistinguishable precedent must be followed unless the court has the power to overrule the earlier decision and does so. By contrast, arguments from analogy vary in their strengths: from very ‘close’ analogies (which strongly support a result) to more ‘remote’ analogies (which weakly support a result). Analogies do not bind: they must be considered along with other reasons in order to reach a result. That an analogy is rejected in one case does not preclude raising the analogy in a different case.
Analogies, like precedents, arise within a doctrinal context.
The case at hand raises a legal issue, e.g. does the impersonation of a boyfriend vitiate the victim's consent in the law of rape, is cross-burning protected ‘speech’ within the First Amendment to the US Constitution, does the defence of duress require the defendant to have acted as a reasonable person would have done? Other cases dealing with the validity of consent or the scope of protected ‘speech’ or reasonableness in defences provide potential analogies.
An analogy may either be to another case or to another legal doctrine, and the analogy rests on there being some common characterisation of the facts in both cases or the two doctrines which is relevant to the issue.
So knives may be analogous to guns if the issue concerns weapons, but knives may also be analogous to teaspoons if the issue concerns cutlery.
Duress may be analogous to provocation if the issue concerns defences, but duress may also be analogous to incitement if the issue concerns complicity.
Two doctrines or sets of facts are not analogous in the abstract, but in the context of a legal issue.
The case at hand raises a legal issue, e.g. does the impersonation of a boyfriend vitiate the victim's consent in the law of rape, is cross-burning protected ‘speech’ within the First Amendment to the US Constitution, does the defence of duress require the defendant to have acted as a reasonable person would have done? Other cases dealing with the validity of consent or the scope of protected ‘speech’ or reasonableness in defences provide potential analogies.
An analogy may either be to another case or to another legal doctrine, and the analogy rests on there being some common characterisation of the facts in both cases or the two doctrines which is relevant to the issue.
So knives may be analogous to guns if the issue concerns weapons, but knives may also be analogous to teaspoons if the issue concerns cutlery.
Duress may be analogous to provocation if the issue concerns defences, but duress may also be analogous to incitement if the issue concerns complicity.
Two doctrines or sets of facts are not analogous in the abstract, but in the context of a legal issue.
Two questions arise about analogical reasoning. Firstly, by what process
does a decision-maker identify the ‘common characterisation’ between the case at
hand and the analogous one?
Secondly, what type of justificatory force does the common characterisation provide?
On the first question, just as no two cases are identical in every respect, so no two cases are such that some common characterisation of the facts cannot be found. But not every case is thought to provide an analogy, so what limits or directs the selection of analogies?
The answer to this question flows into the issue of the justificatory force of analogies. What sort of reason does an analogy provide for deciding the instant case in the same way?
Secondly, what type of justificatory force does the common characterisation provide?
On the first question, just as no two cases are identical in every respect, so no two cases are such that some common characterisation of the facts cannot be found. But not every case is thought to provide an analogy, so what limits or directs the selection of analogies?
The answer to this question flows into the issue of the justificatory force of analogies. What sort of reason does an analogy provide for deciding the instant case in the same way?
It is widely agreed that the existence of an analogy depends ultimately
upon the justification for the analogical decision. The facts in a case may fall
outside the ratio of an existing precedent, and thus the court is not bound by
the precedent. On the other hand the justification for the earlier decision may
apply to the later case, and thus provide an argument from analogy. Take the
case of the impersonation of a boyfriend in the law of rape. Assume that there
is authority for the proposition that the impersonation of a husband vitiates
consent for the purposes of rape.
Whether the impersonation of a boyfriend is analogous depends upon why such a marital impersonation vitiates consent.
If it is thought that part of the significance of being married is the sharing of physical intimacy with that particular person, then the rationale is applicable to other close personal relationships. If instead the rationale is that consent to an impersonator involves committing an act of adultery, i.e., an act different in kind to that consented to, then although the two situations are obviously very similar, the analogy will fail.
Whether the impersonation of a boyfriend is analogous depends upon why such a marital impersonation vitiates consent.
If it is thought that part of the significance of being married is the sharing of physical intimacy with that particular person, then the rationale is applicable to other close personal relationships. If instead the rationale is that consent to an impersonator involves committing an act of adultery, i.e., an act different in kind to that consented to, then although the two situations are obviously very similar, the analogy will fail.
It is often argued that reasoning by analogy and distinguishing precedents
are mirror images of each other: given the facts of two cases, the question is
whether there is a good reason for treating them differently.
In the case of distinguishing, a precedent must be followed unless there are good reasons for treating it differently. In the case of analogy, it is said, a precedent must be extended unless there are good reasons for treating the instant case differently. But this is misleading, since the symmetry is incomplete. A precedent cannot be distinguished on grounds that would, in substance, imply that the precedent was wrongly decided: it must be treated as correctly decided. A precedent need not be extended, however, if later courts regard its rationale as unpersuasive. A longstanding doctrine of the common law was that a husband could not commit the offence of rape against his wife. By the twentieth century the rule was increasingly recognised to be archaic and objectionable. Thus, unlike the question of impersonation discussed above, no one suggested that the rule should be extended to cohabiting couples.
Where a decision is not regarded as misguided, however, it does provide an argument for being followed. The later court may still decide, however, that it would not be desirable, all things considered, to do so.
In the case of distinguishing, a precedent must be followed unless there are good reasons for treating it differently. In the case of analogy, it is said, a precedent must be extended unless there are good reasons for treating the instant case differently. But this is misleading, since the symmetry is incomplete. A precedent cannot be distinguished on grounds that would, in substance, imply that the precedent was wrongly decided: it must be treated as correctly decided. A precedent need not be extended, however, if later courts regard its rationale as unpersuasive. A longstanding doctrine of the common law was that a husband could not commit the offence of rape against his wife. By the twentieth century the rule was increasingly recognised to be archaic and objectionable. Thus, unlike the question of impersonation discussed above, no one suggested that the rule should be extended to cohabiting couples.
Where a decision is not regarded as misguided, however, it does provide an argument for being followed. The later court may still decide, however, that it would not be desirable, all things considered, to do so.
The explanation for the justificatory force of such resemblances is,
however, controversial. There are two major alternative accounts, the one
relying on principles, the other on reasons.
An influential view on analogy regards it as grounded in the principles
that underlie existing cases.
A body of cases can be examined to determine which principle (or set of coherent principles) explains and justifies those decisions, in a process akin to reflective equilibrium.
The process is only akin to reflective equilibrium because the individual cases (the equivalent of the specific judgements about particular situations) are either immune from revision, or are highly resistant to revision. So the principles must map the decided cases precisely, or must depart from only a small proportion of them.
If the principle(s) identified in this process apply to the instant case, then that provides a good reason in favour of the result supported by the principle.
A body of cases can be examined to determine which principle (or set of coherent principles) explains and justifies those decisions, in a process akin to reflective equilibrium.
The process is only akin to reflective equilibrium because the individual cases (the equivalent of the specific judgements about particular situations) are either immune from revision, or are highly resistant to revision. So the principles must map the decided cases precisely, or must depart from only a small proportion of them.
If the principle(s) identified in this process apply to the instant case, then that provides a good reason in favour of the result supported by the principle.
A number of criticisms question whether this account captures what is
normally going on in analogical reasoning.
One criticism focuses on the fact that the principle must track the existing cases and try to make the best of them.
Unless the decisions are all correct on the merits, any principle based on them must itself be flawed: for if it were morally correct it would not support the mistaken decisions. The question this raises is whether it can be justifiable to use such a principle to decide a novel case, rather than decide the case on its own merits.
Can there be ‘principles’ of this kind, which are neither conventional parts of a practice nor morally correct?
A more common view, however, is that a principle that makes best sense of a series of cases or aspects of legal doctrine can have some justificatory force even though the cases or doctrines are morally imperfect. In the case of tort liability, for example, the cases might be best explained by the principle that liability will only arise where the defendant's conduct has been unreasonable, i.e., that both harm to the plaintiff and unreasonable conduct is necessary for liability. This principle may be morally mistaken, i.e., there may be situations where even reasonable conduct should result in legal liability. Nevertheless the principle may still be regarded as having some justificatory force in the context of that legal system.
A judge might think that the correct moral principle is that other things being equal there should be no liability without unreasonable conduct. But although the law is imperfect in this way, the legal principle still has some force because it is a near enough neighbour to the correct principle and it explains the existing cases.
One criticism focuses on the fact that the principle must track the existing cases and try to make the best of them.
Unless the decisions are all correct on the merits, any principle based on them must itself be flawed: for if it were morally correct it would not support the mistaken decisions. The question this raises is whether it can be justifiable to use such a principle to decide a novel case, rather than decide the case on its own merits.
Can there be ‘principles’ of this kind, which are neither conventional parts of a practice nor morally correct?
A more common view, however, is that a principle that makes best sense of a series of cases or aspects of legal doctrine can have some justificatory force even though the cases or doctrines are morally imperfect. In the case of tort liability, for example, the cases might be best explained by the principle that liability will only arise where the defendant's conduct has been unreasonable, i.e., that both harm to the plaintiff and unreasonable conduct is necessary for liability. This principle may be morally mistaken, i.e., there may be situations where even reasonable conduct should result in legal liability. Nevertheless the principle may still be regarded as having some justificatory force in the context of that legal system.
A judge might think that the correct moral principle is that other things being equal there should be no liability without unreasonable conduct. But although the law is imperfect in this way, the legal principle still has some force because it is a near enough neighbour to the correct principle and it explains the existing cases.
A separate line of criticism centres on the fact that courts do not often
articulate their use of analogies in terms of some ‘principle’ inherent in an
earlier case. Where principles are used as arguments for a result, earlier cases
tend to be cited as illustrations of the application of the principle, rather
than as analogies to the facts of the case at hand. If another case is cited as
providing an analogy, the emphasis will be on how ‘close’ the analogy is, i.e.,
on how specific the common characterisation of the facts of the two cases is,
and how that characterisation relates to the rationale for the earlier decision.
The more specific an analogy, the stronger; the more abstract the characterisation, the weaker the argument as an analogy.
The reason for this is that the more specific the analogy, the less room there is for distinguishing the two cases, whereas the more abstract the analogy the more grounds on which the two cases may be regarded as significantly different. So if it is lawful to consent to tatooing, it is also lawful to consent to a decorative branding, which is closely analogous.
On the other hand, the analogy of boxing to sadomasochistic activities is more remote, although both involve the intentional infliction of a certain level of harm.
The more specific an analogy, the stronger; the more abstract the characterisation, the weaker the argument as an analogy.
The reason for this is that the more specific the analogy, the less room there is for distinguishing the two cases, whereas the more abstract the analogy the more grounds on which the two cases may be regarded as significantly different. So if it is lawful to consent to tatooing, it is also lawful to consent to a decorative branding, which is closely analogous.
On the other hand, the analogy of boxing to sadomasochistic activities is more remote, although both involve the intentional infliction of a certain level of harm.
This last point relates to the fact that cases are rarely justified solely
on the basis of principles: instead there are a range of considerations which
are applicable and justify the result. A principle may apply with equal force to
two cases with very different facts, but those differences may make the cases
not very analogous. What this suggests is that while principles do provide
arguments for reaching a certain result, they do not explain the nature of
analogical reasoning.
The reasons-based approach to analogical reasoning focuses on the
justifications for the analogical case (for two very different accounts see Raz
1979, 201–6 and Brewer 1996).
It considers the extent to which the rationale for the decision in the earlier case is applicable to the case at hand.
Take the case of the impersonation of a boyfriend in the law of rape.
Whether this situation is analogous to the impersonation of a husband depends on the reasons for the latter vitiating consent.
There need be no single principle that underlies the rationale.
It may rest on a number of factors that reinforce the conclusion.
It considers the extent to which the rationale for the decision in the earlier case is applicable to the case at hand.
Take the case of the impersonation of a boyfriend in the law of rape.
Whether this situation is analogous to the impersonation of a husband depends on the reasons for the latter vitiating consent.
There need be no single principle that underlies the rationale.
It may rest on a number of factors that reinforce the conclusion.
One consequence of this approach is that if the rationale for the earlier
decision is tied exclusively to the particular category used in the ratio, there
will be no scope for analogical extension to broader categories.
In law duress is not a defence to murder regardless of the circumstances, due (it is said) to the uniqueness of deliberate killing and the fact that duress is, at best, an excuse. On this rationale there is no room for arguing that duress should be excluded in cases of physically disabling a victim. On the question of whether duress could be a partial defence to murder, on the other hand, there is an arguable analogy to the excuse of provocation, which operates to reduce murder to manslaughter. Killing may be inexcusable, but that does not mean that every deliberate killing warrants a conviction for murder. Of course, duress involves an actual decision to kill, whereas provocation a temporary loss of self-control. The case for reducing killing under duress to manslaughter depends upon whether the rationale for provocation (e.g. as a concession to human frailty) extends to it. Two factors—the defendant's loss of self-control and the victim's involvement in the killing—readily distinguish the two situations, and weaken any analogy.
In law duress is not a defence to murder regardless of the circumstances, due (it is said) to the uniqueness of deliberate killing and the fact that duress is, at best, an excuse. On this rationale there is no room for arguing that duress should be excluded in cases of physically disabling a victim. On the question of whether duress could be a partial defence to murder, on the other hand, there is an arguable analogy to the excuse of provocation, which operates to reduce murder to manslaughter. Killing may be inexcusable, but that does not mean that every deliberate killing warrants a conviction for murder. Of course, duress involves an actual decision to kill, whereas provocation a temporary loss of self-control. The case for reducing killing under duress to manslaughter depends upon whether the rationale for provocation (e.g. as a concession to human frailty) extends to it. Two factors—the defendant's loss of self-control and the victim's involvement in the killing—readily distinguish the two situations, and weaken any analogy.
The reasons-based approach helps to explain why individual cases, and
individual doctrines, can ground analogies. It also explains what is accurate in
the principles-based approach, since some of the considerations underlying
analogical cases will be principles. But there are more legal considerations
than principles, and these too play a role in analogical reasoning.
Why does the law make use of arguments by analogy, rather than simply
deciding novel cases on their own merits?
In ordinary moral deliberation, analogies are used to argue that one disputed situation is indistinguishable from another situation where the merits are relatively clear. They leave three main responses open:
(a) that the case is indeed indistinguishable since the same rationale applies to both;
(b) that the case is distinguishable; or
(c) that the case is indistinguishable, but upon reflection the assessment of the original case was mistaken. (Reflection on another case might, of course, lead one to conclude that one's original assessment was mistaken, even though the two cases are distinguishable.) As a result, analogies are useful heuristic devices for deepening and sharpening reflection on the merits. It is also the case that people are often more confident in their judgements about various concrete cases than they are about abstract theories that attempt to account for their judgements, and so regard this is a more profitable way to approach a question.
In ordinary moral deliberation, analogies are used to argue that one disputed situation is indistinguishable from another situation where the merits are relatively clear. They leave three main responses open:
(a) that the case is indeed indistinguishable since the same rationale applies to both;
(b) that the case is distinguishable; or
(c) that the case is indistinguishable, but upon reflection the assessment of the original case was mistaken. (Reflection on another case might, of course, lead one to conclude that one's original assessment was mistaken, even though the two cases are distinguishable.) As a result, analogies are useful heuristic devices for deepening and sharpening reflection on the merits. It is also the case that people are often more confident in their judgements about various concrete cases than they are about abstract theories that attempt to account for their judgements, and so regard this is a more profitable way to approach a question.
In law, by contrast, analogies carry a weight additional to the merits of
the case.
The approach of courts is complex. Some decisions and doctrines are regarded as mistakes and have no analogical weight.
Other doctrines may be regarded as imperfect—not wholly correct—but do have analogical weight.
Other still may be regarded as simply correct, and their existence provides further support for adopting the view in the novel case.
There are a number of possible indirect benefits that accrue from the practice of analogical reasoning, such as exposing judges to a wider variety of fact situations than the particular set before them, making them consider the views of other judges in previous cases and exerting a conservative pressure on individual decision-makers.
But is there any more fundamental rationale to the form of reasoning?
The approach of courts is complex. Some decisions and doctrines are regarded as mistakes and have no analogical weight.
Other doctrines may be regarded as imperfect—not wholly correct—but do have analogical weight.
Other still may be regarded as simply correct, and their existence provides further support for adopting the view in the novel case.
There are a number of possible indirect benefits that accrue from the practice of analogical reasoning, such as exposing judges to a wider variety of fact situations than the particular set before them, making them consider the views of other judges in previous cases and exerting a conservative pressure on individual decision-makers.
But is there any more fundamental rationale to the form of reasoning?
Like precedent, analogies cannot be justified by recourse to expectations.
Whether there is an expectation of analogies being followed, such expectations
will only be justified if there are good independent reasons for using analogies
in this way.
Consistency may provide a rationale for a limited exercise of analogy.
Where an earlier case has settled some indeterminacy in the application of the law, and where the rationale for the earlier decision is equally applicable to the later facts, then it would be inconsistent to decide the later case differently.
Consistency may provide a rationale for a limited exercise of analogy.
Where an earlier case has settled some indeterminacy in the application of the law, and where the rationale for the earlier decision is equally applicable to the later facts, then it would be inconsistent to decide the later case differently.
The strongest justification for analogical reasoning, however, lies in the
value of replicability. This is often put in terms of the importance of
‘coherence’ in the law (MacCormick 1978, 153, 187–8; Sunstein 1993, 778–9; see
also Raz 1979, 204–6 on ‘partial reform’).
Arguments in favour of coherence normally emphasise its instrumental value.
This is tied up with the replicability of legal decision-making.
There are two important characteristics of legal decision-making. The first is the fragmentary nature of legal materials. The second is the plurality of decision-making bodies.
Legal materials—precedents, statutes, conventions, principles—are fragmentary in two senses:
(a) they are the work of many different hands at different times and with different outlooks and
(b) different areas of law owe more to some hands and times than others. As a result legal doctrine tends to exhibit only a thin global coherence, whereas it may possess a thick local coherence. The pluralism of decision-makers is also two-fold:
(a) there are many individuals making decisions using the same body of materials, and
(b) these individuals do not share a uniform evaluative outlook. Given the fragmentary nature of legal material and the plurality of decision-makers there is considerable scope for disagreement when decision-makers are faced with novel questions.
Arguments in favour of coherence normally emphasise its instrumental value.
This is tied up with the replicability of legal decision-making.
There are two important characteristics of legal decision-making. The first is the fragmentary nature of legal materials. The second is the plurality of decision-making bodies.
Legal materials—precedents, statutes, conventions, principles—are fragmentary in two senses:
(a) they are the work of many different hands at different times and with different outlooks and
(b) different areas of law owe more to some hands and times than others. As a result legal doctrine tends to exhibit only a thin global coherence, whereas it may possess a thick local coherence. The pluralism of decision-makers is also two-fold:
(a) there are many individuals making decisions using the same body of materials, and
(b) these individuals do not share a uniform evaluative outlook. Given the fragmentary nature of legal material and the plurality of decision-makers there is considerable scope for disagreement when decision-makers are faced with novel questions.
Analogical reasoning helps to make the outcome of cases more predictable by
giving weight to existing legal decisions and doctrines. But it only does so
against a certain background, one where despite decision-makers not sharing a
uniform normative outlook, there is a large measure of agreement on the
existence and importance of certain values. A certain level of agreement is
required for decision-makers to see a case as analogous, since that rests on
what they judge to be the proper justification for the earlier decision.
It also means that while they may disagree on the resolution reached in various cases, the disagreement is unlikely to be profound, but reasonable. (For an argument that this requirement can be overstated, see Sunstein).
It also means that while they may disagree on the resolution reached in various cases, the disagreement is unlikely to be profound, but reasonable. (For an argument that this requirement can be overstated, see Sunstein).
The use of analogies in law, then, serves to compensate for some of the
indeterminacy which flows from fragmented materials and the pluralism of
decision-makers. That a close analogy exists usually provides a good reason for
deciding the case the same way, since it renders the law more replicable than it
would otherwise be, and enables lawyers to predict more accurately how a
situation will be treated by the law.
Of course, this is only a relative value: analogies can be defeated by other considerations if there is a good basis for distinguishing, or if its merits are too weak.
Of course, this is only a relative value: analogies can be defeated by other considerations if there is a good basis for distinguishing, or if its merits are too weak.
Precedent and analogy are two central and complementary forms of legal
argument. What makes them characteristic of legal reasoning is the circumstances
of decision-making in law.
The greatest contrast is with individual reasoning, where neither precedent nor analogy have the same significance.
An individual may give weight to what she has done in the past, e.g. because she believes the decision was made under optimum conditions, or she should not or does not want to disappoint someone's expectations, or there are special reasons to treat the two situations identically.
Similarly, the comparison of the problem at hand with another situation may help clarify one's thinking, but one's judgement on the other case is only relevant to the extent that it is correct.
The greatest contrast is with individual reasoning, where neither precedent nor analogy have the same significance.
An individual may give weight to what she has done in the past, e.g. because she believes the decision was made under optimum conditions, or she should not or does not want to disappoint someone's expectations, or there are special reasons to treat the two situations identically.
Similarly, the comparison of the problem at hand with another situation may help clarify one's thinking, but one's judgement on the other case is only relevant to the extent that it is correct.
In an institutionalised system with many decision-makers and a
heterogeneous group of legal materials there is a tension between
decision-making being relatively predictable for those to whom it will apply and
the law being morally improved.
In such a context precedent and analogy help to shore up the predictability of decisions whilst leaving room for courts to improve the law.
They do this in two different ways.
Precedents are distinguishable (and subject to overruling), while analogies provide non-conclusive reasons for reaching a particular outcome.
The success of these compromises depends upon there being a fair measure of background agreement between decision-makers over the important values served by the law—both measures would be too weak in the face of widespread and deep value disagreement.
A range of mechanisms exist in law that help maintain such a relative consensus: legal education, the working environment, and the selection of candidates for the bench all tend to produce more convergence than is found in the general community.
In addition, there is an internal feed-back element—in deciding cases, courts are aware that their decisions can be distinguished (as well as overruled), and that it is only their ruling that are binding on later courts.
This gives them good reasons to press justifications that are based on values widely endorsed by their brethren.
In such a context precedent and analogy help to shore up the predictability of decisions whilst leaving room for courts to improve the law.
They do this in two different ways.
Precedents are distinguishable (and subject to overruling), while analogies provide non-conclusive reasons for reaching a particular outcome.
The success of these compromises depends upon there being a fair measure of background agreement between decision-makers over the important values served by the law—both measures would be too weak in the face of widespread and deep value disagreement.
A range of mechanisms exist in law that help maintain such a relative consensus: legal education, the working environment, and the selection of candidates for the bench all tend to produce more convergence than is found in the general community.
In addition, there is an internal feed-back element—in deciding cases, courts are aware that their decisions can be distinguished (as well as overruled), and that it is only their ruling that are binding on later courts.
This gives them good reasons to press justifications that are based on values widely endorsed by their brethren.
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Harvard Law Review 106.
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Toward a Theory of Legal Justification",
Stanford: Stanford University Press
White, J.
Analogical Reasoning’ in
"A Companion to the Philosophy of Law and Legal Theory", Patterson (ed.), Oxford: Blackwell
KEYWORDS: legal reasoning: interpretation and coherence in, nature of law: interpretivist theories, nature of law: legal positivism, nature of law: natural law theories, reasoning: moral.
I am grateful to Liam Murphy and Joseph Raz for their very helpful comments
on a draft of this entry, and to John Stanton-Ife for a number of valuable
discussions of the topic.
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