http://constitutionalism.blogspot.com/2010/02/is-law-based-on-logical-fallacy.html
A friend of mine, John Wolfgram, posed this interesting question:
It is true that argument ad verecundiam (from authority) is a
logical fallacy and it is also true that argument from and to legal
authority is the basic /modus operandi/ of the law. Does that
therefore mean that the basic method of operation of the law based
in a logical fallacy?
The answer is not a simple "yes", because there is more involved than
argument ad verecundiam. Legal practice is mostly about deciding what
actions to take on behalf of the public, which involves what are called
deontic propositions. During the course of that process, there is a
tendency to indulge in making declarative propositions, assertions about
what is or is not, and that is where such fallacies can be a special
problem.
A court is a deliberative assembly of individuals with various duties
and the authority to decide certain kinds of legal issues presented to
it, called its jurisdiction. One of those duties is to preside over the
court, and that presiding officer is typically called the bench or the
"judge" (although it may be a panel of several, one is normally the chief).
One of the things courts are typically asked to do is "find" declarative
propositions: that the defendant is or is not guilty, or at fault, or
whatever. Obviously, the court can err, and declaring something true
doesn't make it true. What the court is really doing is deciding "we
will act as though it were true". They may have the authority to do that.
So when in law someone argues from authority one is really saying, "we
don't know if what he is saying is valid, but we have to make a
decision, and he seems more credible than the alternatives, so we will
act as though what he is saying is valid." No ad verecundiam fallacy in
that.
The fallacy comes when one transitions from "we will act as though what
he is saying is valid" to "what he is saying is valid".
Let's examine what Court Y in Case B is doing when it cites a Court X in
Case A as precedent. It is saying:
1. The evidence and arguments in Case A are similar to those in our
Case B.
2. Court X in Case A decided to act as though the arguments for
their decision were more valid than the arguments against.
3. We have confidence in the integrity and competence of Court X.
4. We don't have time to re-examine all the arguments in our Case B
going back to first principles.
5. Therefore, in the interests of clearing our docket so we can take
other cases, we will act as though the decision of Court X in Case A
was valid, and act as though it is similar enough to our case B to
make a decision to act in a similar way.
Now all of the above seems sensible, and indeed, given crowded dockets
and limited cognitive capacity of judges, it would seem that "justice"
could hardly be done otherwise if we are to have any finality in cases.
However, as a matter of logic, every one of the five points above
involves at least one logical fallacy, not only ad verecundiam.
So are we doomed to a judicial process that is logically infirm? Not
quite. Game theory provides some useful insights.
Considered as a game, skillful play involves what are called heuristics
-- decision strategies that do not guarantee always finding the best
move, but which are highly likely to find an acceptably good move most
of the time, and which are computationally tractable given constraints
on time, cognitive capacity, and completeness and reliability of
information about the state of the game.
Deontic logic, which is an extension of the first order predicate
calculus, is designed to help us manage this kind of game playing, to
optimize outcomes in general and over the long term. No guarantees of
just decisions in every particular case, but a high likelihood of
reasonably just decisions in most cases. The above five points represent
attempts to use heuristics, whether with great skill and integrity or not.
Our job, in trying to decide and guide public policy, is therefore not
to seek to impose strict first order logic on all of the decisionmaking
of judges, but to improve the quality of such decisionmaking without
excessively consuming scarce resources of dockets or personnel, and that
involves reducing the susceptibility to error in each of the above five
points. ("Error" being the euphemism for everything from incompetence to
corruption.) By thus disaggregating the processes involved, we can
better discern what might be done to improve them.
Now of course an important way is to improve the competence and
integrity of judges. There is no substitute for that. But we also indeed
to adjust our expectations of them.
Consider the recent case of Citizens United v. FEC. For me, with my
background in constitutional study, it is an easy case. If I were to
write the majority opinion in it, it would be very short:
1. The statute was passed by Congress.
2. The statute abridges freedom of speech and press.
3. The First Amendment says "Congress shall make no law .. abridging
freedom of speech or press".
4. There are no later amendments to the Constitution that would
supersede the First Amendment.
5. Therefore, the statute is unconstitutional.
6. Case dismissed.
It took me less than three minutes to write that. No need for extensive
written or oral arguments (although I read the written arguments in
about an hour). I can generally do the same with almost any case that
turns on constitutional issues. (Statutory or regulatory construction
can take longer.)
If we had nine justices on the Supreme Court with my background and
skills, we could decide all 8000 cases submitted each year and the
Supreme Court at least would not be a bottleneck. Now of course it would
only be a handful of libertarian constitutionalists that would applaud
those decisions. Most others would probably be very upset, if only
because so many opinions would likely consist of only a few lines like
the above. Not much for them to chew over, and their professional
standing depends on having lengthy court opinions to chew over.
I am not unique. I'm sure we could find enough others like me to fill
all the judicial positions. Of course, reliance interests, especially
prosecutors, would go nuts.
But we can identify a large part of the problem. Judges want to avoid
criticism, so they might overdo their deliberation and opinion writing.
Now, most of the ones we have presently need to take even more time
deliberating, because their subject matter knowledge and reasoning
ability is weak. But that could be solved by requiring them to be much
better educated. They should also be socially, as well as financially,
isolated from the many interests and their lawyers that might appear
before them, without lacking practical experience of many kinds.
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