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settlement. Distinguishing precedent rules, which is really overruling precedent rules, can undermine the settlement value of existing rules.
Apart from these potential adverse consequences, the conventional practices we have mentioned suffer from two problems of a deeper kind.
First, judges do not consciously adopt these methods as indirect strategies for reducing error; instead, they draw analogies, announce narrow rules,
and distinguish precedent rules because they believe this is the right way to decide cases. In other words, judges have, in a sense, tricked themselves
into adopting what might well be good rule-making habits. This state of affairs is hard to reconcile with the ideal of legal decision making as a
publicly accessible process based on reason.
The element of unreason is most evident in the case of analogical deci- sion making: judges deciding by analogy purport to resolve disputes on
grounds that are logically unavailable. Conventions that restrict judicial rule making to rules that explain the outcome of adjudication are more
straightforward, but they treat a cautionary strategy as a limit on judicial power. The practice of distinguishing precedent rules disguises overrul-
ing as something more modest. In each case, the practice in question is justifiable, if at all, for reasons of which practitioners are unaware.
Indirection and self-deception are common enough in law.
Rules themselves illustrate this point. As we noted in Chapter 1, legal rules serve
moral values indirectly. Rules reduce the errors of natural reasoning by prescribing answers in a form that will sometimes yield the wrong results.
As a consequence, following rules means acting against the balance of reasons in some cases. Acting against the balance of reasons is not rational.
Therefore, to accept the authority of rules, one must convince oneself that following the rule is the right thing to do in every case, even though
it is not.
Self-deception of this kind allows rules to perform the morally valuable function of settling controversy, but it is nevertheless disturbing.
See Larry Alexander, Pursuing the Good – Indirectly, 95 Ethics 315 1985. On the ethical and practical problems of indirection and deception, including self-deception, see, e.g., Alexander
and Sherwin, supra note 3, at 89–91; Thomas Schelling, The Strategy of Conflict Cambridge, Mass.: Harvard University Press 1980; Larry Alexander and Emily Sherwin, The Deceptive
Nature of Rules, 142 U. Pa. L. Rev. 1191, 1211–25; Gregory Kavka, The Toxin Puzzle, 43 Analysis 33 1983; Gregory Kavka, Some Paradoxes of Deterrence, 75 J. Phil. 285 1978.
See Alexander and Sherwin, supra note 3, at 553–95; Schauer, supra note 2, at 128–34; Chapter 1, supra, text at notes 18–25.
Any departure from reasoned decision making, even if justifiable on reasoned grounds, is a cause for regret.
The second problem is a practical one. Because the conventional judi- cial practices we have described involve self-deception and irrationality,
they are also unstable. If lawyers and judges come to understand that con- ventional practices are not rationally defensible on their own terms, they
may cease to accept those practices, and whatever benefits conventional practices hold for rule making will be lost. Analogical reasoning appears
to be firmly established at present: our critical analysis of analogical methods is not likely to prevail over pervasive legal training and profes-
sional acceptance. Careful factual comparisons, however, may eventually give way to quicker word-based searches for applicable rules.
Judicial diffidence in rule making may be more vulnerable, as judges come to
accept that they possess a full complement of rule-making power. There are also indications that courts have become more comfortable with
direct overruling of precedent rules, and therefore may be less likely to search past cases for distinguishing facts.
The common law, therefore, stands on movable ground. The rule model of judicial decision making, which allows the common law to
function as law and to settle controversy, is defensible only when judicial rules are justified as rules, and only when judicial rules are generally
followed. Rule following depends on the willingness of judges and actors to apply rules even when the results the rules prescribe conflict with their
own best judgment. To the extent that practices we have discussed in this chapter are important to the quality of judicial rules, the justification
of precedent rules also depends in part on conventional attitudes and practices of judges. It follows that perfect rationality can subvert the
conditions for sound and effective common law.
See Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1844–52 2001 discussing advisory opinions in state courts; Tiersma,
supra note 14, at 56–61, 66–68 tracing an increase in explicit judicial “holdings”.
See Zenon Bankowski, D. Neil MacCormick, and Geoffrey Marshall, Precedent in the United Kingdom, in Interpreting Precedents, supra note 8, at 315, 342 discussing English practice;
Tiersma, supra note 14, at 61–62 noting an increase in explicit overruling by American courts.
P A R T T H R E E
Reasoning from Canonical Legal Texts
n the previous part we have focused on common-law reasoning by judges and have concluded that there is nothing special about
it. In cases unconstrained by precedent, judges use ordinary moral
reasoning – the method of reflective equilibrium – and ordinary empirical reasoning to decide controversies and to craft precedent rules for future
cases. In cases that are constrained by precedential rules, judges use ordinary deductive reasoning. Reasoning from results in precedent cases
rather than from rules, reasoning by analogy from precedent cases, and reasoning from legal principles that emerge from precedent cases have
all been shown to be illusory as forms of legal reasoning. The results of such special forms of “reasoning” – special in that they are deemed
uniquely emblematic of the legal craft – lack rational force. They are some combination of indeterminate, incoherent, and normatively unattractive.
In a limited sense, what appear to be such types of “reasoning” may reflect some useful heuristics for judicial decision making in certain kinds of
cases. But they do not qualify as forms of reasoning themselves. Legal
REASONING FROM CANONICAL LEGAL TEXTS
reasoning in common-law cases, to the extent it is reasoning at all, is nothing more than ordinary moral, empirical, and deductive reasoning.
Legal training is not required to do it, or to do it well.
In this part we turn our attention to another precinct of legal rea- soning, that of interpreting canonical authoritative rules promulgated by
lawmakers of various types. The lawmakers can be legislators enacting statutes, administrators promulgating rules under either their delegated
or their inherent authority to do so, or judges establishing precedent rules under the rule model of precedent. The lawmakers whose rules are
in question can be solitary natural persons – the president or the mayor, for example – or they may be multimembered institutions such as leg-
islatures, administrative agencies, and appellate courts. We deal with constitutions and those who “enact” constitutions in a chapter devoted
just to those topics and therefore ignore them here.
Governing society by rules requires not only that lawmakers promul- gate rules but also that those rules be understood by those who will be
guided by them, including lawyers helping clients navigate the corpus juris and representing them in legal disputes, and judges adjudicating
cases arising under the rules. Ideally, the meaning of the rules would be clear to all concerned. After all, as we have said, clear guidance is the
rules’ raison d’ˆetre. Realistically, that will never be the case universally. The meaning of some rules will be unclear to some people. Moreover,
even when the meaning of the rules is clear, it is worth reflecting upon how one determines what a promulgated rule means. When a rule’s
meaning is clear, what makes it so? And when a rule’s meaning is unclear, how do we clarify it? It is to these topics that we now turn.
C H A P T E R
Interpreting Statutes and Other Posited Rules
What kind of “reasoning” or methodology is employed when judges, lawyers, administrators, and ordinary citizens interpret statutes or other
humanly authored and promulgated posited laws? Is the interpretation of laws a special form of reasoning, a methodology learned only in
The reader will not be surprised that we do not regard legal interpreta- tion as some special technique that imbues the notion of legal reasoning
with a mystique. Our view is the commonsense, person-on-the-street view: posited laws are nothing more or less than communications from
lawmakers to others regarding what the lawmakers have determined the others should do. If, for example, the legislature passes a statute that
states, “No property owner shall keep a bear within one thousand feet of a private residence,” the statute represents the legislature’s determina-
tion of what property owners should do regarding any bears they might possess and probably what sheriffs, judges, and others should or may do
if property owners do not act accordingly.
REASONING FROM CANONICAL LEGAL TEXTS
Our starting point, therefore, is that, aside from the irrelevancy that it makes a demand rather than a request, such a statute is fundamentally
no different from a letter written by Mom requesting that you put out the dog the next time she comes to visit, or a note signed by your two kids
asking you to rent a movie on your way home. The statute, Mom’s letter, and the kids’ note all refer to some behavior that is either demanded or
requested. And each may pose identical problems of interpretation.