The Ash Twins Blog

Laws oftentimes read out as mathematical-logical constructs, pretending to account for and give instructions for every possible contingency. The truth, of course, is that legal concepts, like moral concepts, are “open” in the sense that they “can never be reduced to concrete situations or actions.”[1] When arising from actual facts, legal problems are not soluble by logical legal reasoning. Linking up legal notions of guilt with the actions they are intended to criminalize requires a further ontological leap that is not found in legal reasoning.[2] Something else outside of legal reasoning—a cognitive roll of the dice, if nothing else—always comes in to save the day, oftentimes without the conscious recognition of the decision-maker.[3]

Consider a hypothetical decision-maker D making a choice C from a continuum of alternatives. This model could represent damages decisions in tort or contract, or sentencing for criminal cases. Party A prefers some choice on the continuum; Party B prefers some different choice on the continuum. Given these preferences, the range of choices is restricted. Given judicial precedents, the range of choices is further restricted. The overlap between these two restrictions is the possible range of available choices to the decision-maker. Once the judge has pared down the options to those within this range, there is no objectively correct choice. Legal reasoning cannot determine that final step. Within the bounds of that choice-range, the result C is determined by extra-legal factors, most notably the social-psychological bargaining processes between A, B, and D.

Alternatively, consider a hypothetical decision-maker D choosing in favor of Party A or Party B. This sort of binary decision is exemplary of liability determinations or injunctive relief. In many (perhaps most) cases, there is precedent to justify a decision for either side. Rather than restricting the range of choices, these precedents can be conceptualized as determining the probability distribution among the discrete decisions. At any rate, there is no objectively correct choice that is attainable by legal reasoning. Again, the result is determined by extra-legal factors, with bargaining among the actors at the top of the list.

[1] Harmen van der Wilt, “Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court,” International Criminal Law Review vol. 8 (2008), pg. 263.

[2] J.M. Brennan, The Open Texture of Moral Concepts (1977), pg. 119.

[3] Chief Justice John Roberts’s bad-faith self-conceptualization as umpire is exemplary of this tendency. See Richard Posner, How Judges Think (2008), pp. 78-79.

From The Economist:

The paper’s authors, Linda Bischoff of the University of Bern in Switzerland and her colleagues, looked at great tits nesting in boxes in a Swiss forest. As the birds’ eggs started to hatch, they removed both the nestlings and the nests from the boxes. They microwaved the nests to kill any parasites and then returned both nests and nestlings. Then they infested half the nests with 60 hen fleas each…

the songs of those males that had suffered fleas in early life were a third shorter than those sung by the others. The once-infested were also less quick off the mark when the time came to sing. Male great tits respond to the calls of other males by calling back rapidly, and thus overlapping the incoming call with their own. By playing recordings of calls to the males they were monitoring, the team found that those which had been flea-free managed to overlap with almost two-thirds of the outsider’s call, whereas the others managed to cover less than half of it.