The Jurisprudence of Skepticism

THE JURISPRUDENCE OF SKEPTICISMKM

THE JURISPRUDENCE OF SKEPTICISMRichard A. Posner

Michigan Law ReviewApril, 1988

86 Mich. L. Rev. 827INTRODUCTION

The point of the article is to show two distinct methods of legal reasoning. It is well known that there are two competing schools of thought in legal academia those of the legal realists and the formalists. This article explains legal skepticism. Legal skepticism is essentially epistemological, which when done universally and about all subjects leads to clear thinking and decision-making. There are degrees of skepticism from skepticism about everything to skepticism about nothing e.g. Dworkin was "right answer" thesis and Fried's "artificial reason" thesis. This author's opinion is somewhere in between the two extremes. There is overlapping ontological and legal skepticism, which should be kept distinct. In keeping these methods of thinking, distinct healthy skepticism leads to better decisions in legal disputes. Put simply legal reasoning is common sense and ordinary with indeterminate outcomes.

I. THE METHODS OF REASON, WITH SOME APPLICATIONS TO LAWA. Exact Inquiry1. The Syllogism

Legal reasoning is illustrated by analogy through a syllogism. For instance, a syllogism that Socrates is a man and that all men are mortal, leads to the conclusion that Socrates is mortal and illustrates how legal reasoning follows a similar pattern. In a non-pejorative sense, legal reasoning is formalistic. There are two serious limitations on the use of the syllogism in the law. First, there may be several contestable minor premises that must be established in order to reach the conclusion and secondly a non-agreed-upon definition of one major premise. The point is that exceptions to rules are not the problem because exceptions are part of the rules so long as they are established. However discovering the rules is interpretive and hence not logic. The flaw is that interpretation or reinterpretation is possible outside of the realm of logic when definitions are not clear. A judge's role in forcing legal reasoning into logic is consistent with legal skepticism.

2. Scientific ObservationScientific observation and formal study is simply not available in legal arena. Judges, lawyers, and litigants do not have the luxury or time for the exact study of scientific observation and measurement. Therefore, scientific observation methods of discerning truth are unavailable for legal practitioners and jurors. The point is that law is not exact and should not be mistaken as exact. Even among scientists, theories may be falsified and cannot be verified (such as gravity or black holes). The result is that the practical application of law is not as pure and exact as a scientific world full of rigorous testing.

B. Practical Reason: An IntroductionPractical reasoning generally denotes the ways people think and reason in reaching a decision for choice as opposed to determining the truth-value of a given proposition through pure reason. Aristotelian logic of induction, statistical probability, and other everyday methods generally make up what may be called practical reasoning. Some propositions, which may not be measured by pure science, can employ practical reasoning in determining a reliable outcome or decision. Practical reason can account for

of 8


certain anomalies in legal decision-making, which provide an explanation for legal decisions other than those of legal positivists. Very few cases are decided on any scientific or observational methods of inquiry but rather upon practical reasoning.

C. Some Methods of Practical ReasonListed are some methods of practical reasoning applicable to legal decision-making.

1. AuthorityIn science, a consensus creates the authority that advances the field of science whereas in the law authority is derived from judicial decision. The rigorous scrutiny in which scientific decisions are made is much more exact and legal decision-making is debatable because it is not empirically verifiable. Hence, there is some indeterminacy in legal decisions, which come from authority.

2. Reasoning by AnalogyIn reasoning by analogy, the idea is to search for cases witch are similar in order to argue a favorable position. This form of reasoning is distinguishable from that of authority because one is saying that a given set of facts of one case is similar to the facts at hand and should lead to a similar decision. Arguing from authority is much more persuasive however, particularly in law schools; reasoning by analogy is very prevalent.

3. InterpretationInterpretation necessarily involves communication. If one communicates, a message and the recipient does not understand it then the message becomes useless. It is in the sense that statutes and constitutions are interpreted in logical syllogistic fashion so that their message is effectively disseminated. However is also possible that various canons of statutory interpretation and construction can be used to distort a particular message and may be done intentionally or unintentionally.

4. Means-Ends RationalityIn a cost-benefit analysis, the means to an end can be rationalized such that efficiency or policy can justify indeterminate and inconsistent outcomes in legal reasoning. A poignant example is the learned hand formula for negligence which is essentially an economic cost-benefit analysis applied to legal reasoning. A particular problem is that the law is not simply interpretation so there are necessarily some problems that emerge when a means to justify a result is the analytic framework for a judicial decision.

5. Tacit KnowledgeTacit knowledge is that which people use when riding a bicycle. Put simply it is knowledge that people used which is highly complex and does not require conscious thought in order to practice. People balance while riding a bicycle without thinking about it, which makes it tacit knowledge. In the judicial realm and in all judicial areas where the practice of law is at issue there is tacit knowledge occurring yet it is almost impossible to measure. "The mind" cannot be measured scientifically or even with common sense and therefore tacit knowledge is incredibly difficult to quantify or qualify, but cannot be denied.

6. The Test of TimeThe test of time is essentially trial by error. The idea is to test many theories over a long period of time and let the data tell the Observer whether the theory is surviving (essentially a Darwinian concept of survival of the fittest). Essentially a consensus that people come to confirming various ideas makes them validated and concrete. (This is essentially a pragmatic argument as to how we "know" that a concept is true). As time

of 8


goes by and there are more trials of the idea it becomes more difficult to be skeptical of it and although we can never "know" anything to be true it is far more likely that something is what it purports to be after being validated through an extended period of time consisting of several trials. This is essentially a relativistic or prespectival view of truth such as that held by Frederick Nietzsche. Karl Popper also thought the idea of the test of time to be important and implicit in his influential and important work, which is essentially Darwinian. The basic idea is that ideas cannot be confirmed only falsified and hence the test of time as the only way to "know" anything. Another point on the issue is that the words correct or incorrect may not be applicable to law because it is an art form and not a science. As a final note on the test of time it may be inapplicable because as Popper notes scientific theories may survive scrutiny and eventually be discredited but how can one say that a bad decision is good enough or should be overturned just as there is no criteria for judging if a painting is horrible and should be painted over or if it should be put in the Louvre next to master pieces.

II. ELEMENTS AND IMPLICATIONS OF A SKEPTICAL JURISPRUDENCEA. The Limits of Reason in Adjudication

Thus far, the discussion has centered on legal reasoning, however legal reasoning is a form of practical reasoning. There are no absolute correct conclusions only good conclusions. Put simply there is no methodology to legal reasoning. This conclusion does not mean that the law is not objective it is merely a criticism of its methodology. A way around the problem could be to assign weights to competing interests and decide on that basis yet to do so would be a mistake because it would allow for preference or whim to carry the day. The power of legal reasoning to generate determinative conclusions could be saved by something such as economics e.g. the learned hand formula for negligence. Ronald Dworkin may be seen as jumping the gun by treating the law in this light without having yet earned enough consensus and support to turn legal reasoning into valid political and ethical philosophy. The evidence that legal reasoning is not aprioristic is abundant. One example is the rules on conflict of interest for judges. Any small conflict of interest can disqualify a Judge sitting on the bench in any given case. Since the given facts of any case can yield in a disqualification of a judge, it is evident that there is no consensus about legal reasoning. A more precise and immediate cause of disagreement (lack of consensus) is the growth of the Constitution and statutory means of legal interpretation and analysis as opposed to common law. A secondary cause is that there is more litigation and this leads to more indeterminacy in adjudication because of the wide variety of precedent. Although the Supreme Court has not bound itself, precedent binds all lower courts by Supreme Court precedent and indeterminacy only goes so far. One unusual factor is the ratio of the Supreme Court authority cases and the number of decisions that bind lower courts. As lower court decisions increase and the Supreme Court's authoritative decisions remain constant or decline the indeterminacy of predictable adjudication shows a corollary increase since lower courts are left in an open area of law without authoritative precedent. There is also a problem of their heteronomy on moral and political issues. For instance, people disagree about the abortion issue in their literal indeterminacy in that debate because people strongly hold beliefs. Our nation's legal heterogeneity mirrors its moral heterogeneity.A further point is that there is then a trend towards various tests instead of determinant decision-making in the legal reasoning process. (There is no if A Then B. no A B).

of 8


However, there are some signs of a countermovement, which lends more credence and legitimacy to the objectivity of law and rules of law.

B. The Skeptical JudgeA skeptical epistemology of law has two key implications one being the attitude of a judge the other his judicial style of interpretation. Under the circumstances, facts, and law in every case the judges simply try to come to the most reasonable conclusion.

In every case, the judge is trying to reach the most reasonable result in the circumstances (which include but are not limited to the facts of the case and to legal doctrines). This position resembles but is different from Holmes's conception of the judge as interstitial legislator and (equivalently) Article I(2) of the Swiss Code of 1807, which provides, ‘If no rule can be derived from the statute, the judge shall decide in accordance with the rule which he would promulgate if he were the legislator.’ Id at 862

Hence the judges are not legislators and do not have unfettered discretion when applying the law. The judges have some discretion but are not free to act as legislators with purely political agendas. "The domain of reasonableness is large but not infinite." When dealing with areas law that are open judges must apply sound policy, which does not make them judicial activists "legislating from the bench." In an "open area of law”, there is a four step process which may lead to sound judgments. (1) get a general overview of the area of law (2) read the relevant precedents that can help guide the decision in the case (3) make a policy judgment in accordance with the area of law (4) review the relevant precedent and make sure it is consistent with the prevailing policy.Two other theories have been posed for difficult adjudication with the first being avoidance and the second being publicity. Avoidance is simply avoiding conflicts with previous decisions on similar facts whereas publicity avoids conflicting with public consensus. The problem in the first approach is that it constrains judicial judgment, which conflicts internally or with prior judgments of the judge in question. The problem with the second approach is that it limits the judge’s ability to take into consideration some public policy and other consensus data that has the potential of guiding the judicial decision. Judges may use other specific techniques to stabilize the judicial process through limiting the application of relevant law to algorithmic or formula based application of rules to facts in a positive law fashion. The approaches outlined give the few possible ways of stabilizing legitimate judicial decisions, but do not solve the issue because it is difficult to determine a correct result in an indeterminate case.

C. Ontological Skepticism in LawThe objectivity of law is central to legal reasoning especially in matters that cannot be observed such as mental processes nor verified such as mental imagery. Pierce describes the process of unobservable phenomenon such as the mind as a type of pragmatism and Ayer describes the un-verifiability as a meaninglessness type of knowledge or belief. Skepticism deals with these issues of legal theory with emphasis on laws of objectivity. The pragmatic view deals with the issue of mental effect by asserting that there could be no starting point from which to proceed since if one were nothing more than a mind in a jar fed by a mad scientist. In this sense, there is an epistemology and we can know

of 8


something even if it is simply that we are thinking which thus provides some starting point. The point becomes more poignant when one thinks about how any other living creature makes volitional movements because of mental processes. Hence, rejecting the idea that knowledge of the real world does not exist begins to make sense. Oliver Wendell Holmes believed in the idea of mental processes of law such as intent, but that it should diminish as the law became more sophisticated. Holmes advocated that if everything were known about the law then something such as intent should more accurately be called programming since it would not be a volitional movement of the independent agent. From an economic standpoint William Landis and other jurists, recognize that at some point the concept of intent is a legal stopgap, which eventually becomes a simple statement of ignorance of what one is thinking. In this pragmatic view economic theory may be able to help dispel the notion of ignorance of intentional mental processes and dispel the notion altogether. Through economic thinking the theory of utility is useful to quantify and theorize things such as preferences in real concrete ways since it doesn't logically makes sense that people unintentionally do things such as go to college in order to improve their socioeconomic status. In generalizing the theory, it makes sense that observing people's behavior reveals some sort of intent or mental processes to a point. By generalizing and abstracting, the point of observable behavior to mental processes an economic analysis emerges about things such as causation, which is largely an unobservable legal element. In an economic analysis applied to the law tends to verify certain patterns such as the rise and fall the stock market that is observable just as human behavior and in this sense rejecting the mentalist notion against "the mind."

D. Behaviorism and the Judicial PerspectiveIt may seem inconsistent that a judge would rely on behaviorist notions to ascribe mental processes or intentions. However, many professionals can accurately describe and predict future behavior prior to the independent agents acting out of the behavior. It is at this point that judges themselves may not be entirely predictable, but the way a court will decide can yield reliable predictability thus verifying the behaviorist notion.Whatever judges may say or even believe, there is little reason to doubt that they exercise considerable discretion and frequently must and do decide indeterminate cases.

First, a judge may feel constrained only by virtue of a network of principles such as self-restraint and stare decisis that are (1) chosen by judges on (2) contestable grounds—two facts the judge may forget.

Second, because policy and ethical considerations are permissible elements of decision in our judicial culture, the judge may lack a distinct sense of where legal reasoning leaves off and policy judgment or social vision begins.

Third, neither the conditions of judging nor the methods of selecting judges would lead one to expect the deep introspection that so much academic literature attributes to judges.

The very foundation of Peirce's pragmaticism is the idea that people hate being in a state of doubt and will do whatever is necessary to move from doubt to belief. Judges decide cases with greater confidence than the nature of judicial decisionmaking permits, and they write with more confidence than they feel.

Fourth, like other people, judges want to diffuse responsibility for their unpopular, controversial, or simply most consequential actions, and they do this by persuading themselves that law, rather than the result of choice dictate their

of 8


decisions. Finally, as no one likes to think he is making mistakes, the psychology of judging

includes the belief that one is usually right.‘certitude is not the test of certainty,’ it would be a mistake to infer from judicial rhetoric and beliefs that judges are usually right in the difficult cases, or that the edifice of American justice painstakingly created by two hundred years of adjudication is demonstrably superior to a variety of alternative edifices that might have risen in its place. Compared to chess players, military officers in war, and businesspersons in competitive markets, judges receive little information about the effects of their decisions, information that might enable correction or improvement; and the methods of legal reasoning are not sufficiently trenchant or incisive to enable the correctness of decisions in difficult cases to be determined a priori with any reliability.The point of legal reasoning and judicial interpretation is primarily to justify one's point and give reasons for a decision in an indeterminate case. Although the matter may not be able to be proved right or wrong the objectivity of the law is more than the mere preference of a given judge through a well-reasoned opinion.

E. Right Answers: Historical and Literary AnalogiesRonald Dworkin has posited the notion that there are right answers to every question. In this conception, Dworkin analogizes literature to law. Skepticism rejects the notion that there is a correct answer to the most indeterminate legal questions because as in literature there are unknown facts. A point to note is that the law must consider present facts whereas literary interpretation generally deals with events that can be imagined or past historical events. The point is that the law does not interpret what the intention of the framers of a given law meant at the time, but how it applies to a given set of facts in order to reach a proper adjudication. Interpreting the law is not like interpreting literary pieces because legal facts are ascertainable whereas literary fiction leaves many facts to the reader's imagination. It is for this reason that the law is less akin to scientific study through practical reasoning. Dworkin is correct that there can be determinacy, but the problem is that the determinacy is theoretical rather than practical in reasoning. Two other points erode Dworkin's attempt to explain statutory interpretation through literary comparison. The first is that it is easy to find indeterminate problems in literature whereas judicial officials do not have the luxury of refusing to resolve a dispute because the rule of law did not explicitly tell the judge how they determine the outcome of a given set of facts. The second problem is that literary interpretation often yields convergent opinions about literary works. Judges do not come from the same background or education and as a result, judicial decisions on a particular point of law can be largely divergent.

F. What Is Law?1. Holmes and the Prediction Theory of Law

Oliver Wendell Holmes and his prodigy of legal realists subscribe to a predictability of law theory. Essentially, it was a skeptic point of view, but reveals wisdom in that the extra theory of "the law" is not what decides cases it is the practical application of the law. In other words, it entails judges doing law. The intrinsic verification of the predictability of the outcome of a given set of facts where there is precedent on point from a higher court gives credence to the idea. If two courts have the same set of facts and one follow the precedent, even if bad precedent, it is likely that the decision would be

of 8


affirmed. However, if another court given the same facts and bad precedent departed from the existing precedent of a higher court it is likely that they will be overturned. The simple illustration shows that doing law is somewhat syllogistic. It is possible that there is a higher law such as natural law, which theoretically could overturn positive law; however, the predictability of law cannot always be neatly changed. Holmes did subscribe to indeterminate legal theory because there are infinite sets of facts that must be decided and hence the syllogistic method of reasoning is not always practically applicable. The central question is what the law will do in a given set of circumstances not what the law theoretically could do. This does not discredit equitable discretion or judicial discretion in general it simply accounts for the indeterminate "hard cases." A superb example is diversity cases in which federal judges are called to predict what the law of the forum state would be which still leaves the federal judge in a position of indeterminacy because a judge of the forum state would be in the same position given those same facts.

First, law cannot be a complete theory, because it implies in principle a slavish subordination of the judgment of lower-court judges to the will of higher-court judges.

Second, the prediction theory implies a more creative scope for the lower-court judge confronted by a seemingly dispositive precedent decided by a higher court than the theory that law is a set of concepts.

Third, the prediction theory avoids the following paradox created by the theory of law as a set of concepts.

2. Nuremberg and the Hart-Fuller DebateIn the Hart Fuller debate, the focus was on the correctness of "the law." From a skeptical point of view the question is simply what is "law." In this sense both Hart and Fuller were correct and wrong. Hart contends that "the law" is the positive law to be applied and therefore defines law narrowly. Fuller's contention is that the law is a much broader concept incorporating justice, fairness, and morality such as the natural law. Each conception of the law is partly correct definitionally, but the disagreement arises when doing the law is the focus rather than its definition.

G. Holmes, Nietzsche, and the New ConventionalistsIn Frederick Nietzsche's genealogy of morals an attack on Christian ideals is rampant and Nietzsche posits the notion that morality is nothing more than the will to power. Oliver Wendell Holmes made a similar attack on the common law by tracing the origins of common-law doctrine and pointing out how they have changed over time. The interesting point is that each author took a skeptical approach to their endeavor through pointing out appeal to popular or widely accepted ideas. Each approach to the problems respectively emphasized relativism. In this sense, both authors attacked formalism through historical evolution and alternative theories that are plausible. A modern skeptic is more apt to become conventionalist in the sense that it is practical reasoning. It is argued that the political, ethical, and legal norms are foundationalist and the quest to discover them is futile. Perhaps all jurists are skeptics since there is no methodology to determine "hard cases" that call for practical reasoning to resolve their indeterminacy.

III. ‘A CAPTIVE OF A THIN AND UNSATISFACTORY EPISTEMOLOGY’?Banter has leveled criticisms of Judge Posner by asserting that the wedge between scientific knowledge and practical reasoning is incorrect in light of Judge Posner's

of 8


advocating judicial restraint due to the separation of powers in the government. However, the question itself is indeterminate because all lawyers have an opinion, but there is no "correct" answer to the question.

CONCLUSIONOne skepticism is about the possibility of arriving at demonstrably correct answers to difficult legal questions. The other is skepticism about the existence of a distinctive analytical method called ‘legal reasoning.’ Most legal questions can be answered syllogistically—that is, by the application of a general rule to particular facts in a setting where the meaning, the applicability, and the validity of the rule are all clear. Nevertheless, a significant fraction of the disputes that enter the judicial system cannot be resolved syllogistically, or by other methods of exact inquiry. Many lawyers believe they can be resolved by the use of distinctive methods of legal reasoning, notably reasoning by analogy; but legal reasoning is just reasoning, period, and in particular that reasoning by analogy is neither special to law nor especially cogent.A logical positivist would deny that a proposition that is neither analytic nor verifiable could have any truth-value. ‘practical reason’—a grab bag of reasoning methods that includes deliberation, interpretation, reliance on authority, tacit knowledge, and much else besides—can be used to establish the truth of many propositions with a reasonable degree of certainty. Law relies very heavily on practical reason, often to good effect. However, sometimes a legal question will not yield to methods of practical reason. There is thus an area of indeterminacy, which, of necessity, judges fill with contestable judgments of ethics or policy. The more heterogeneous the judiciary, the larger the area of indeterminacy; and the modern American judiciary, like the society it mirrors, is extremely heterogeneous.All this can be summed up in the proposition that the goal of the careful judge is nothing more pretentious than a reasonable decision. If only one of the possible outcomes would be reasonable, it can fairly be described as the correct outcome—the ‘right answer’ to the legal question posed by the case. However, often two or more outcomes will be reasonable, and the choice among reasonable outcomes is an open one, though not precisely a legislative one.The demonstration of the strengths and weaknesses of the various methods of reasoning drew heavily on epistemology and on philosophy of mind. Later on philosophy of mind and on ontology the argument for a skeptical attitude toward certain entities that play an important role in legal analysis is explored. These include legislative intent, criminal premeditation, and ‘law’ itself. Ontological skepticism complements epistemological skepticism both in exposing weaknesses in Ronald Dworkin's ‘right answer’ thesis and in dimming the prospects for resolving difficult legal questions with the help of such familiar crutches as legislative intent and the idea of justice. It also enabled the validity of behavioral approaches to the law; that ontological skepticism supports the economists' project of trying to explain legal practices without reference to mental or conceptual phenomena such as intent and causality.Ontological skepticism also helps us to understand that law is not a set of concepts but simply the activity of judges—once this is understood whether the Nazi racial laws were ‘really’ law are exposed as pseudo-questions—and makes surprising connections, for example between Holmes and Nietzsche.

of 8

The Jurisprudence of Skepticism

Documents

Transcript of The Jurisprudence of Skepticism