Logic of Judges
by Jon Roland
In the 1994 Davidian trial U.S. District Judge Walter Smith, having first ruled, correctly, that defendants could not be held guilty of enhancements to a crime if the jury had acquitted them of the crime, reversed himself (after an ex parte meeting with the prosecutors) and explained "The law doesn't have to be logical."
The basis for that attitude had been laid by the "legal realists", particularly Oliver Wendell Holmes, Jr., "the life of the law has not been logic; it has been experience." this has been discussed by Benjamin N. Cardozo in "The Nature of the Judicial Process" (1921).
The First Law is supposed to be to "Treat Like Cases Alike", and that would seem to imply that if the law is not logical it is not law, but lawyers have their "informal reasoning" that tolerates contradiction.
It is an old joke among logicians that for lawyers and judges the "analogical syllogism" (A is similar to B and B is similar to C; therefore A is similar to C.) is a valid rule of logical inference. (It is in geometry for the special meaning of "similar" for triangles.)
Well, logic is logic. The art comes in translating between statements in legalese and statements in logic, something that judges generally lack. We are not, by the way, talking about the first order predicate calculus, but about deontic logic, an extension that allows for normative statements. It is briefly discussed in an article here, but the link to the paper with the prolog source code is broken, so we provide it here.
Thus, courts often conflate several kinds of "powers", including structural, procedural, legislative, executive, judicial, national, and state, discretionary, duties, as well as what might be called fields of action.
So, for example, the U.S. might acquire through treaty a new territory, either incorporated, or some trust territory or protectorate. Is a trust territory or protectorate covered by Art. IV Sec. 3 Cl. 2, or are the powers derived entirely from the treaty? I would argue for the former, but although that would not involve any new powers in conflict with the Tenth Amendment, it would be an expansion of the field of action of some of those powers, and one might loosely refer to that as an expansion of powers.
This problem is especially highlighted in the opinion in Reid v. Covert, 354 U.S. 1 (1957), and its refusal to overturn the conflicting Missouri v. Holland, 252 U.S. 416 (1920).
In the "logic" of our courts "not overturning" should not be interpreted as "confirming". It could just be "Maybe we just overturned it with this decision, maybe we didn't, but we don't want to take the time right now to figure that out, and anyway, we weren't adequately briefed on the full implications," In other words their "logic" is not "two-valued" (valid or invalid), but "multi-valued" (valid, invalid, indeterminate/confused, intermediate, or we don't want to talk about it now). No one should attempt to treat judicial decisions as precedents who does not take this multi-valued "logic" into account, or to regard the judges as having anticipated all the ways they could be misunderstood. They understood what they did at the time they wrote (probably in somewhat of a hurry), and many are aghast at how legions of clever lawyers later try to twist or nuance those words.
Just as any system of logic that allows a single contradiction allows all contradictions, the allowance in a system of values like "indeterminate" presents problems, because any operation on an indeterminate value is itself indeterminate. Thus, the value of a proposition like "A is valid & B is indeterminate" is indeterminate. Infect a system with enough indeterminate values and the entire system becomes indeterminate. Such a system provides no support for reaching firm conclusions. It devolves into a cover for making political decisions.
Our court system, if it is to make use of stare decisis at all (and I consider binding stare decisis to be logically unconstitutional), should ask panels of judges to review their own decisions every ten years or so and issue clarifications, to revolve the many misinterpretations.
There is also one other factor that needs to be kept in mind: Law, unlike the hard sciences, is a field that not only tolerates corruption, but embraces it. Members of that profession go out of their way to avoid discussing the problem that many court decisions are not just errors, but crimes. Decisions are accepted even when it is obvious that bribery, intimidation, cronyism, bias, or aversion to political pressure induced a decision the judge knew was wrong, and only tried to dress up in twisted rationalizations to cover what he or she did. Yet such corrupt decisions can be and are treated as binding precedents that carry the corruption forward, injuring or ruining the lives of countless people for generations.
1. The Common Law, p. 1
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Maintained: Jon Roland of the Constitution Society
Original date: 2009/8/6 —
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