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Logic in Judicial Reasoning PDF
Logic in Judicial Reasoning PDF
Fall 1968
Recommended Citation
Halper, Thomas (1968) "Logic in Judicial Reasoning," Indiana Law Journal: Vol. 44 : Iss. 1 , Article 2.
Available at: http://www.repository.law.indiana.edu/ilj/vol44/iss1/2
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LOGIC IN JUDICIAL REASONING
THoiIAs HALPERt
It has become almost platitudinous to complain that the law is some-
times too logical. Logic, it is said, speaks less as a language than as a
code, and is too rigid and inflexible to deal with the complex and dynamic
problems that constitute the law's chief concern. Thus, "The life of the
law has not been logic: it has been experience.' "Every lawyer must
acknowledge that the law is not always logical at all." 2 "In any contact
between life and logic, it is not logic that is successful." 3 A "page of
history is worth a volume of logic.".. "There is a danger that,, if the
Court does not temper its doctrinaire logic with a little practical wisdom,
it will convert the constitutional Bill of Rights into a suicide pact."5 Such
assertions indicate the dislike that most lawyers quite properly feel toward
any type of legal reasoning that would drown out their voices in the clang-
ing gears of mechanistic determinism.6
This general distrust of logic derives from five typical situations in
which the process by which a result is reached is termed "logic." First,
a court sometimes takes a short-cut to a decision by taking a word in its
literal sense, ignoring its context or the purpose of the rule in question.'
Here, "logic" is mistaken for a belligerent precisionism, for an excessive
adherence to the literal or settled meaning of a word, for what Cardozo
called "the bark of a hard and narrow verbalism. '
Second, a court may indulge its ingenuity with the result "not inter-
pretation, but perversion." 9 But the disingenuous does not become logical
torical hypodermics can keep a dying principle alive only so long, and it is
the hand that holds the needle that is at fault and not the serum.
Finally, the oracular tradition in which the American judge operates
often compels him to appear "a mere rabbinical automaton with no more
give and take in his mind than you will find of a terrier watching a rat-
hole." An outstanding example of this was supplied by Justice Roberts
in United States v. Butler:
When an act of Congress is appropriately challenged in the
courts as not conforming to the constitutional mandate, the ju-
dical branch of the government has only one duty,-to lay the
article of the Constitution invoked beside the statute which is
challenged and to decide whether the latter squares with the
former."5
The net effect of this approach is often that of a Pontius Pilate, who con-
stantly lets execution proceed, while exculpating himself from moral or
social considerations with a simplistic doctrine of legal reasoning. Critics
of this view, which Morris Cohen has aptly termed "phonograph theory"
of legal reasoning, are prone to equate "logic" with the bare mechanics
involved in operationalizing a fiction.
Allusion to these concepts as "logic" leads one to ask, with Alice,
"whether you can make words mean so many different things." Evidently,
the detractors of logic agree with Humpty Dumpty's reply, "The question
is, which is to be master-that's all." 17
This broad distaste for logic has been made most articulate by the
realists, especially the "rule-skeptics."' 8 Rule skeptics argue that decisions
recognizing that the case is no longer binding precedent but simply a relic for the
constitutional historians." Gold v. DiCarlo, 235 F. Supp. 817, 819 (S.D.N.Y. 1964).
14. Mencken, The Library: The Great Holmes Mystery, 26 Am. MERCURY 123,
125 (1932).
15. 297 U.S. 1, 62 (1936). Cf. 3 W. BLACKSTONE, COMMENTARIES ON THE LAWS
OF ENGLAND 396 (9th ed. 1793).
16. Cohen, Positivisn and the Limits of Idealism in the Law, 27 COLum. L. REV.
237, 238 (1927).
17. L. CARROLL, ALICE'S ADVENTURES IN WONDERLAND AND THROUGH THE LOOK-
ING-GLASS 247 (1924).
18. Clear formulations of this view may be found in B. C-Anozo, THE NATURE OF
THE JUDICIAL PROCESS (1921) ; K. LLEWELLYNJuRISPRUDENcE:REALISM IN THEORY AND
PRACTICE (1962), which contains nine reprinted articles on legal realism; Cohen, Rules
vs. Discretion, 11 J. PHILOSOPHY 208 (1914) and The Process of Judicial Legislation, 8
Am. L. REv. 161 (1914) ; Cohen, Transcendental Nonsense and the Functional Approach,
35 COLUM. L. REV. 809 (1935); Holmes, The Path of the Law, 10 HARV. L. REV. 457
(1897) ; Lloyd, Reason and Logic in the Common Law, 64 L.Q. REV. 468 (1948), where
it is argued that legal rules are so vague and elastic that they do not lend themselves to
inferential reasoning. See also M. GLUCKMAN, THE JUDICAL PROCESS AMONG THE
BARoTSE OF NORTHERN RHODESIA ch. 6 (1955), where it is suggested that the very vague-
ness of legal criteria performs a beneficial and indispensable social function in affording
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courts a measure of flexibility in dealing with new situations. This conclusion is sup-
ported by Schapera, The Sources of Law in Tswana Tribal Courts: Legislation and
Precedent, 1 J. AFR.L. 150 (1957).
19. K. LLEWELLYN, BRAMBLE BUSH 9 (2d ed. 1951).
20. H. HART, THE CONCEPT OF LAW 135 (1961). But see Dunlop, Developments in
English Jurisprudence-1953-1963,3 ALBERTA L. REv. 63, 74 (1963).
21. Adamson v. California, 332 U.S. 46, 63 (1947) (Frankfurter, J., concurring)
and Rochin v. California, 342 U.S. 165, 173 (1952); Leyra v. Denno, 347 U.S. 556
(1954) (Black, J.). These fundamental ethical considerations are given brilliant
articulation in I. BERLIN, Two CONCEPTS OF LIBERTY 50-51 (1958).
22. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting), and
Holmes, supra note 18, at 466.
LOGIC
23. But see Fuller, Reasm and Fiat in Case Law, 59 HARV. L. REv. 376, 381 (1946).
24. J. WIGUORE, PROBLEMS OF LAW 70 (1920), and Pollock, Justice According to
Law, 9 HARv.L. REv. 295, 300 (1895).
25. Dennis v. United States, 341 U.S. 494, 524 (1951) (Frankfurter, J., con-
curring).
26. B. CARDOZO, supra note 18, at 29.
27. Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUm. L. REV.
527 (1947).
28. Smith, Interpretation in English and Continental Law, 9 J. COMP. LEG. &
IN'L L. 153, 153-54 (1927).
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has called the "judicial hunch. ' 2 9 Legal reasoning, it is said,"0 may be
put in logical form, but this is merely a verbalization of an emotional con-
clusion, a rationalization of a "judicial hunch." It is not the disciplined
opinion that is important in understanding how a decision was reached;
indeed, the opinion is relevant only insofar as it reveals the chaos of feel-
ing, prejudice, and training which determined that ruling even before the
writing of the opinion was begun. In this view, the "function of juristic
logic . . . seems to be . . . to describe the event which has already tran-
spired."'" More cynical supporters of the judicial hunch might conclude
that judges write opinions in order to conceal the actual route by which
they arrived at their decision. This is reminiscent of one of the White
Knight's schemes:
But I was thinking of a plan
To dye one's Whiskers green,
And always use so large a fan
That they could not be seen."
The judge, then, emerges as a magician and the law turns out to be a box
of tricks.
Undoubtedly, in some cases reasoning follows the decision, and
certainly no one supposes that opinions, by themselves, reveal how a choice
was reached; an opinion obviously is a defense of a legal position, and not
an exercise in psychological self-analysis. To acknowledge the importance
of the judicial hunch, however, is not to deprecate the role of logic; for
this may only mean that "a judge who is steeped in the law can often dis-
cern the principle which governs the situation before he can cite the exact
authority which supports it . . . and there is nothing at all remarkable in
the fact that he can see the picture before he has filled in all the details."33
To call this process "hunch" or "intuition" is simply to call it fe ne sais
29. Guest, Logic in the Law, in OXFORD ESSAYS IN JURISPRUDENCE 187 (Guest ed.
1961).
30. 0. JENSEN, THE NATURE OF LEGAL. ARGUMENT 17 (1957); Cohen, The Place
of Logic in Law, 29 HARV. L. REV. 622, 628 (1916); Hutcheson, The Jzudgment
Intuitive: The Function of the "Hunch" in Judicial Decision, 14 CORNELL L.Q. 274
(1929); Schroeder, The Psychologic Study of Judicial Opinions, 6 CALIF. L. REv. 89
(1918); and especially the works of Jerome Frank, e.g., J. FRANK, LAW AND THE
MODERN MIND ch. 12 (1930), J. FRANK, COURTS ON TRIAL ch. 12 (1949), Frank,
Works and Music: Some Remorks on Statutory Interpretation, 47 COLUM. L. REv. 125
(1947), Frank, Say It With Music, 61 HARV. L. REv. 921 (1948), Frank, "Short of
Sickness and Death": A Study of Moral Responsibility in, Legal Criticism, 26
N.Y.U.L.Q. REv. 545 (1951).
31. Yntema, The Hornbook Method and the Conflict of Laws, 37 YALE L.J.
468, 480 (1928).
32. L. CARROLL, supra note 17, at 282-83.
33. C. ALLEN, LAW IN THE MAKING 334 (6th ed. 1958).
LOGIC
quoi.
While granting the force of these contentions, it may properly be
asked whether they are relevant to discussions of the role of logic in law. 5
The objections to the use of logic seem to dart and flit about the basic
issues without any intention of lighting on the mark. More to the point
are Holmes' comments on the forms of thought:
Whatever the value of the notion of forms, the only use of the
forms is to present their contents, just as the only use of a pint
pot is to present the beer (or whatever lawful liquid it may con-
tain), and infinite meditation upon the pot will never give you
the beer. 6
Nor does the quality of the pot bear any connection with that of the beer.
To damn logic for substantive errors is to miss the point. For logic is
indifferent to empirical considerations; no pretense may be made that
logic can determine that the propositions with which it works are wise or
foolish, important or trivial, right or wrong; it cannot compel a judge to
choose one path of argument over another; it does not offer a systematic,
autonomous, and consistent schema;7 it is impotent even to demonstrate
that its premises are true, false, or probable." Logic is concerned not with
content but merely with form; and so the validity of an inference, deductive
or inductive, is entirely independent of questions of observable reality: a
correct deduction may follow from a false premise and a probable infer-
ence may proceed from a mistakenly recorded event.
As a consequence, when we are supposedly faced with a conflict be-
tween "logic" and "experience" or "logic" and "life," the question arises
as to whether it is in fact logic that we are being told to reject or merely
some ill-advised tendency, which has been mislabelled "logic." Consider,
for example, Di Santo v. Pemsylvania."9 A Pennsylvania statute required
all persons selling steamship tickets to or from foreign countries (except
40. Id.
at 37.
41. Id.at 43.
42. Id.
at 41.
43. Id.at 42.
44. Id.
at 37-39.
45. B. CARDOZO, supra note 18, at 22-23; Ml,.RADIN, LAW As LoGic AND EXPERIENCE
112-13 (1940).
46. G. PATON, TEXTBOOK OF JURISPRUDENCE 152 (2d ed. 1951) ; Walton, Delictual
Responsibility in Modern Civil Law, 49 L.Q. REv. 70, 73 (1933). There are, of course,
LOGIC
monly asserted that this "discovery" process involves the use of induc-
tion." Sir Carlton Kemp Allen, for example, argues that because "induc-
tion works from the particular to the general, [the judge] has to search
for [the legal rule] in the learning and dialectic which has been applied to
particular facts." Thus, concludes Professor Allen, "he is always reason-
ing inductively .... [A]ntecedent conditions . . are the very soil from
which the general propositions must be mined.48 Yet this "mining" may
be a dirty and unprofitable business. For beneath the words of Allen and
the others lie buried rather fundamental unanswered questions: how to
discover which "antecedent" conditions are relevant, and, further, which
''general principle" is "implicit" in them.
Consider, for instance, the crucial matter of determining the ratio
decidendi of a case. It is ironic, though not infrequent, that while re-
cognizing that "the whole doctrine of precedent depends upon the con-
ception of the ratio decidendi,"'4 lawyers find the ratio so difficult to dis-
entangle from the mass of dicta that prophecy becomes treacherous. It has
even been suggested that "the division between ratio and dicta is in fact
mainly a device employed by subsequent courts for the adoption or re-
jection of doctrine expressed in previous cases, according to the inclina-
tions of the subsequent court.""0 One need not subscribe wholly to such a
view to note that the ratio is rarely formulated with the exactness of a rule
of law in a statute. Indeed, judges are not expected to make their formula-
tions any more exhaustive or precise than the immediate context demands,
so as to permit later courts to introduce their own modifications. 5 Thus,
the "general propositions" of the "antecedent decision" are often quite
vague.
With regard to the judicial "mining" of "general propositions," a
story concerning Mr. Justice Holmes may be instructive:
[The tale] concerns a tiresome lawyer who, after citing an al-
most infinite number of cases for a proposition, turned to the
Court and declared that the Court would either have to decide
differences in the British and American approaches. See Goodhart, Case Law in England
and America, 15 CORNELL L.Q. 173 (1930).
47. B. CARDOZO, sz pra note 18, at 22-23; R. POUND, THE SrnIT OF THE COMMON
LAW 182-83 (1921); Lucas, Logic and Law, 3 MARQ. L. REv. 203 (1919); Walton,
supra note 46, at 77. But cf. Marsh, Deduction and Induction in the Law of Torts: A
ComparativeApproach, 23 J.Comp. LEG. & INT' L. 59, 64-68 (1950).
48. C. ALLEN, LAW IN THE MAKING 152 (4th ed. 1946) ; Palley, Stare Decisis and
the Federal Supreme Court, 1961 RHODESIA & NYASALAND L.J. 126, 131 (1961).
49. Simpson, The Ratio Decidendi of a Case and The Doctrine of Binding
Precedent, in OxFoRD EssAYs IN JURISPRUDENCE 159 (Guest ed. 1961).
50. G. HUGHES, JURISPRUDENCE 236 (1955); G. HUGHES AND R_ DIAS, JUR-
ISPRUDENCE 81 (1958).
51. Simpson, supra note 49, at 166.
INDIANA LAW JOURNAL
52. R. HARRIS, THE JUDICAL POWER OF THE UNITED STATES vii (1940).
53. Guest, supra note 29, at 195.
54. 334 U.S. 558 (1948).
55. 336 U.S. 77 (1949).
56. Interesting examinations of the euphemistic practice of "distinction" may be
found in W. FRIEDMANN, LEGAL THEORY 435-50 (4th ed. 1960) and J. STONE, THE
PROVINCE AND FUNCTION OF LAW 171-91 (1946).
57. Guest, supra note 29, at 190.
58. E. LEVI, AN INTRODUCTION TO LEGAL REASONING 3 (1949). But cf., Dickinson,
Legal Rules: Their Application and Elaboration, 79 U. PA. L. REV. 1052 (1931).
LOGIC
ions, are presented to the court, and the court chooses which one it will
apply. But each new decision, by adding something, reshapes the rule:
[A] "rule" or "principle" as it emerges from a precedent case is
subject in its further elaboration to continual review, in the light
of analogies and differences, not merely in the logical relations
between legal concepts and propositions; not merely in the rela-
tions between fact situations, and the problems springing from
these; but also in the light of the import of these analogies and
differences for what is thought by the later court to yield a toler-
ably acceptable result in terms of "policy," "ethics," "justice,"
"expediency" or whatever other norms of desirability the law
may be thought to subserve. 9
Given this natural oscillation between values, it is quite true that
rules are uncertain, at least to the extent that "the certainty of the law is
based on general opinions as to similarity and difference."6 Because the
categories "move" and new "rules" or "principles" emerge, one cannot
identify with absolute certainty the precise proposition upon which some
future analogy will be built. However, this aspect is easily overstated, for
the choice of propositions is not entirely unpredictable, either. Obviously,
they are not selected at random, but in conformance with certain fairly
well-defined practices. These practices consist largely of custom and ju-
dicial experience, yet their force is such that it is not wholly true to say
that "the Constitution is what the judges say it is. .. ."" Even when a
ninety-six year old precedent is overruled,6 2 the Supreme Court does not
evidence absolute freedom of action; for judges are men, too, and con-
siderations of strategy are never entirely absent.63 Because relevance is
inevitably a matter of degree, the "line cannot be drawn by magic of
word or formula."' Dean Levi has crystallized the analogical issue:
When will it be just to treat different cases as though they were
the same? A working legal system must ... be willing to pick
out key similarities and to reason from them to the justice of ap-
plying a common classification. The existence of some facts in
59. Stone, The Ratio of the Ratio Decidendi, 22 MODERN L. REv. 597, 618 (1959).
The interesting point in this process is that the "rule" or "principle" is produced by
the simple comparison of instances. Supra note 24.
60. Levi, The Natural Law, Precedent, and Thurman Arnold, 24 VA. L. REv.
587, 604 (1938). (Emphasis added.).
61. Hughes, quoted in 1 M. Pus y, CuARLEs EVANS HUGHES 204 (1952).
62. Erie R.R. v. Tompkins, 304 U.S. 64 (1938), rev'g Swift v. Tyson, 41 U.S.
(16 Pet.) 1 (1842).
63. W. MURPHY, ELEMENTS OF JUDICIAL STRATEGY (1964).
64. Christie v. Callahan, 124 F.2d 825, 827 (D.C. Cir. 1941) (Rutledge, J.).
INDIANA LAW JOURNAL
(at 487). While conceding that state taxpayers' suits are permitted, it may be suggested
that the principle of Mellon-that a relationship, can become so indirect as to be
practically specious-might be applicable to Beauharnais.
71. Berns, Buck Iv. Bell: Due Process of Law! 6 W. POL. Q. 762 (1953).
72. Buck v. Bell, 274 U.S. 200, 207 (1927) (Holmes, J.). The comparison with
compulsory vaccination refers to Jacobson v. Massachusetts, 197 U.S. 11 (1905). Such
analogical disputations often have had considerable effect upon the growth of the law.
In fact, an eminent legal philosopher has said, "The justification of juristic logic and
technique in terms of principle is that they help us to make the analogy explicit and
thus make possible the criticism necessary to make a legal system liberal and progres-
sive." Cohen, Book Review, 44 H~Av. L. Rav. 1149, 1153 (1931).
73. H. SIJGWiCK, FALLAciES 232 (1884).
74. Wilson, Ot the Argument by Analogy, 31 PHIL. OF Scr. 34, 34-35 (1964).
INDIANA LAW JOURNAL
75. On the vagueness of technical legal terms, see Fullagar, Legal Terminology,
1 MELBOURNE U.L. REV. 1 (1957). For a specific example, see Levin, The Varying
Meaning and Legal Effect of the Word "Void," 32 MICH. L. REV. 1088 (1934).
Ordinary terminology may also raise legal problems of meaning, e.g., Note, When Is A
Vanette a Motor Carf, 1961 RHODESIA & NYASALAND L.J. 10.
76. Guest, supra note 29, at 193. Yet, clearly the appellate judge's "most important
task" is to decide.
77. 0. JENSEN, THE NATURE OF LEGAL ARGUMENT (1957).
78. P. BRIDGMAN, THE LOGIC OF MODERN PHYSICS 5 (1927).
79. Hempel, A Logical Appraisal of Operationism, 79 SCIENTIFIC MONTHLY 215
(1954).
LOGIC
87. Carter v. Carter Coal Co., 298 U.S. 238, 327 (1936) (Cardozo, J., dissenting).
88. Steward Mach. Co. v. Davis, 301 U.S. 548, 581 (1937) (Cardozo, J.).
89. Dickinson, supra note 58, at 1061; Hart, szapra note 35.
90. M. COHEN AND E. NAGEL, AN INTRODUCTION TO LoGIc 18-20 (1934); L.
STEBBING, MODERN INTRODUCTION TO LocIC 493 (1930).
91. Stone, supra note 59.