Can legal reasoning be demystified?

Can legal reasoning be demystified?

Geoffrey SamuelProfessor of Law, Kent Law School

The purpose of this paper is to examine a new work on legal reasoning by two Americanjurists whose aim is to ‘demystify’ it. The paper will not dispute the authors’ central thesisthat the existence of special forms of reasoning in law is false, but it will argue that a socialscience epistemologist would find their analysis at best inadequate. It will be argued thatlegal reasoning is not just reasoning from and about rules; it is also reasoning about factsand about the construction of factual situations. Consequently, it is vital for anyonewishing to have a serious understanding of how lawyers reason to have a familiarity withhow social scientists, and indeed natural scientists, reason about fact. Such reasoningcertainly involves induction, deduction and analogy but these methods are by no meansadequate as an epistemological framework; schemes of intelligibility and paradigm ori-entations are equally important. If there is one paradigm orientation that is special tocertain disciplines like theology and law, it is the authority paradigm, an orientation thatmust be distinguished from an inquiry paradigm. The problem with works by legalphilosophers on legal reasoning is, it will be implied, that they are often conducted fromwithin the authority paradigm and that this, in the end, prevents any demystification.

Is there a phenomenon that can justifiably be called legal reasoning or is legalreasoning only an aspect of reasoning in general? In other words, are there specialforms of reasoning that are peculiar to law? This question, the subject of a new bookby two American jurists specialising, inter alia, in jurisprudence,1 is of interest not justbecause the question has attracted some serious attention but also because it provokesa whole range of other questions. Drawing largely on recent French work on scienceand social science epistemology,2 the purpose of this paper is to examine thesequestions within the context of an assessment of this new book, which, according toits authors, aims to ‘demystify’ legal reasoning.

1. INTRODUCTION: PROVOKING DIFFICULT QUESTIONS?

One of the central difficulties involved with reasoning about reasoning is that oneneeds a set of concepts and categories – an ontological and epistemological model –through which one can adequately approach reasoning as an object of knowledge.Consequently, there is a range of further questions provoked by the general question.For example, is there such a thing as ‘ordinary reasoning’3 or is reasoning always a

1. L Alexander and E Sherwin Demystifying Legal Reasoning (Cambridge University Press,2008).2. There have been a number of collective works published recently in France in the areas ofnatural science, social science, theology, political philosophy and the like; these works, whichwill be cited in the notes that follow, contain a range of very rich essays on epistemology andmethod. They provide a good survey of contemporary thinking in the theory of knowledge andin methodology.3. Alexander and Sherwin, above n 1, p 3.

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matter of discipline, or knowledge area, context? Is reasoning to be strictly categorisedeither under ‘explanation’ (‘scientific reasoning’) or under ‘understanding’ (humansciences)?4 If disciplines are relevant there is then the question not just of what is adiscipline and what are its epistemological and ontological concepts but also of howthese concepts are validated. Is, for instance, astrology a legitimate (epistemologicallyspeaking) discipline? Does a discipline have need of a sufficiently long history beforethese concepts can gain legitimacy? And what relevancy, if any, does the history of adiscipline have on the reasoning methods currently employed by those working withinthe discipline? Can one actually understand the methodology of a discipline from asynchronic orientation or must one also have recourse to a diachronic approach?5

These of course are not the only questions provoked by a reflection on legalreasoning. How should one approach this question about reasoning? Does one need amodel that is somehow divorced from the models employed by reasoning itself? Doesone need a model fashioned from outside the discipline of law in order to demystifythe reasoning model adhered to (seemingly?) by those operating within the disciplineof law? Is such an external–internal dichotomy itself a problem?

If one aims to ‘demystify’ legal reasoning – the methods and modes of thisreasoning – by associating these methods and modes with a more general methodol-ogy (‘ordinary reasoning’), there are then questions about these methods and modes.Is it just a matter of induction, deduction and analogy, or do these reasoning methodsfunction within much more complex epistemological networks in which schemes ofintelligibility and paradigms are just as important as analysis and synthesis? If there isno such thing as a specific form of ‘legal’ reasoning, can one say the same of otherdisciplines? Is there, for instance, no such thing as ‘medical’ reasoning?6 At thisgeneral level, are there ontological and epistemological modes by which one candistinguish, from a discipline viewpoint, between, say, a legal argument and a medicalargument? And if such a distinction between the legal and non-legal knowledge isunjustified, what relevance is work on epistemology, normally regarded (that is to saythere is a consensus among lawyers) as belonging to non-law disciplines, vital to theunderstanding of ‘legal’ reasoning?7 In sum, in posing a question about legal reason-ing and its relationship with reasoning in general, there is a fundamental issue aboutthe intellectual processes and the range of disciplines within which such reasoningoperates.

This fundamental issue needs, then, to encompass a range of sub-issues aboutreasoning. These issues might be examined under several general headings or ques-tions, although of course these headings might well be disputed. Are there specialkinds of reasoning in the natural sciences and in the social sciences? Are there specialkinds of reasoning within these broad headings – that is to say, for example, betweenphysics and biology or between sociology and economics? There is then an issueabout epistemological orientation. Should one adopt a diachronic or a synchronic

4. RA Makkreel ‘Expliquer et comprendre’ in S Mesure and P Savidan (eds) Le dictionnairedes sciences humaines (Presses Universitaires de France, 2006) p 441.5. This appears to be one of the questions behind the problem of reasoning about facts: seeR Nadeau ‘Fait’ in D Lecourt (ed) Dictionnaire d’histoire et philosophie des sciences (PressesUniversitaires de France, 4th edn, 2006) p 486 at p 487.6. Cf AC Masquelet Le raisonnement médical (Presses Universitaires de France, 2006).7. Another question, of course, is whether ‘ordinary’ reasoning recognises a sub-category of‘legalistic reasoning’: cf W Twining and D Miers How To Do Things With Rules (Butterworths,4th edn, 1999) pp 8–13.

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approach?8 Should reasoning, and legal reasoning, be examined from the position ofa naturalist or a cultural paradigm? What is the relevance of the paradigm dichotomybetween methodological individualism and holism?9 In addition, there is a question ofdifferences between legal systems. If one is setting out to demystify legal reasoning,is one talking of legal reasoning just within American law (the main focus of the newbook on demystifying legal reasoning) or within the common law in general or withinthe whole Western tradition of law or within all legal systems? Even if the investiga-tors are limiting themselves to the common law tradition, it does not necessarily meanthat a comparative approach (and to what extent does legal reasoning or reasoning ingeneral make use of comparative methodology?)10 can be ignored. There were cer-tainly interactions between the civil law and the English common law tradition, at thelevel of theory at least,11 even if, in the end, one is talking of two very differentmentalities.12

It has to be said at once that the two American authors, Larry Alexander and EmilySherwin, do not touch on most of these questions. Instead, they claim that their owncontribution to the subject of legal reasoning is ‘fairly simple’; they ‘believe that legalreasoning is ordinary reasoning applied to legal problems’. Those that make legaldecisions ‘engage in open-ended moral reasoning, empirical reasoning, and deductionfrom authoritative rules’ and, with respect to statutes, wills and the like, the legaldecision-makers do not ‘engage in special modes of interpreting texts’.13 In particular,the authors claim both that analogical reasoning in law, ‘as such, is not possible’ andthat legal principles ‘are both logically incoherent and normatively unattractive’.14

With regard to the ‘law’ question – for ‘[l]egal reasoning is, of course, about law’ – thetwo authors regard this as somewhat irrelevant since ‘nothing in [their] analysis oflegal reasoning requires an answer to the jurisprudential question of what counts aslaw’.15 However, they do subsequently add that they ‘approach the problem of legalreasoning within a mainly positivist framework’.16 Ultimately, they argue that thecourts function in two ways: ‘they reason deductively from rules posited by others; orthey posit law, relying on moral and empirical judgment, as any lawmaker must’.17

The authors may feel that the jurisprudential question of what counts as law is

8. An important question in the philosophy of science: D Lecourt ‘Épistémologie’ inLecourt, above n 5, p 428.9. B Valade ‘De l’explication dans les sciences sociales: holisme et individualisme’ in J-MBerthelot (ed) Épistémologie des sciences sociales (Presses Universitaires de France, 2001)p 357; B Valade ‘Individualisme et holisme méthodologiques’ in Mesure and Savidan, above n4, p 620.10. Cf C Vigour La comparaison dans les sciences sociales: Pratiques et méthodes (ÉditionsLa Découverte, 2005).11. P Stein Legal Evolution: The Story of an Idea (Cambridge University Press, 1980)pp 78–121.12. On which see P Legrand ‘European legal systems are not converging (1996) 45 Interna-tional and Comparative Law Quarterly 52.13. Alexander and Sherwin, above n 1, p 3.14. Ibid. Twining and Miers adopt a similar attitude in their exhaustive treatise on reasoningand rules: see Twining and Miers, above n 7, p 127.15. Alexander and Sherwin, above n 1, p 24.16. Ibid, p 25.17. Ibid, pp 25–26.

Can legal reasoning be demystified? 183


irrelevant, but of course they are clearly positing an ontological answer to what countsas legal knowledge. The authors are firmly wedded to the rule model.18

Given this commitment to the rule model and given that the authors are alsocommitted to distinguishing between what they call the ‘descriptive matter’ of legalactors purporting to apply special decision-making techniques and the reality thatthese special techniques are not specialised forms of reasoning,19 it might be useful tobegin this investigation of legal reasoning with what might be called the ‘descriptive’situation. That is to say, it might be valuable to start with what the judges and juriststhemselves assert legal reasoning to be.20 On the whole, this inside view is as com-mitted to the rule model as are the two authors and so what will follow is a questioningof this ontological (and epistemological) assumption. This questioning will suggestthat legal reasoning is as much concerned with social facts, and how they are con-ceptualised, as with any normative propositions, and thus subsequent sections willadvance the thesis that the Alexander and Sherwin account of both legal reasoning andreasoning in general is, epistemologically speaking, inadequate.21 As for the centralthesis of the two authors, this will not itself be put into question: for it will be assertedthat legal reasoning cannot be ‘demystified’ in any epistemological sense without afairly thorough appreciation of reasoning in general in the social sciences. In otherwords, the idea that the ‘methods of decision making are not accessible to thoseoutside the profession’ is rightly dismissed by Alexander and Sherwin.22 However, itwill be argued that reasoning in law is governed by an authority paradigm that has theeffect of distinguishing legal methodology (and some other disciplines like theology)from reasoning in the sciences and social sciences.

2. THE JUDICIAL PERSPECTIVE

Legal reasoning in the common law tradition has been described by a UK Law Lordin the following way:

‘A judicial decision will often be reached by a process of reasoning whichcan be reduced into a sort of complex syllogism, with the major premise consistingof a pre-existing rule of law (either statutory or judge-made) and with the minorpremise consisting of the material facts of the case under immediate consideration.The conclusion is the decision of the case, which may or may not establish new law– in the vast majority of cases it will be merely the application of existing law tothe facts judicially ascertained.’23

18. See also Twining and Miers, above n 7, pp 123–156.19. Alexander and Sherwin, above n 1, pp 3–4.20. Interestingly Twining and Miers advocate an approach from the position of an advocaterather than a judge: Twining and Miers, above n 7, pp 333–340. This makes much sense whenapproaching legal reasoning in terms of argumentation but it does not have the same formal‘authority’ as an assertion by a judge.21. The same criticism cannot be made with such force against Twining and Miers, ibid,because although they are committed to the rule model their book draws much from AmericanRealism and thus is more committed to the importance of facts: see in particular Twining andMiers, ibid, pp 182–183.22. Alexander and Sherwin, above n 1, p 233.23. Lord Simon in Lupton v FA and AB Ltd [1972] AC 634 at 658–659.



Legal reasoning, according to the authoritative sources, is a matter of deductivelogic (‘complex syllogism’). That is to say, it is a form of reasoning that is said not tobe empirical in its foundation in that it is based not on observation but on propositions(‘laws’ or ‘axioms’) from already acquired, or posited, information.

This method needs some elaboration in the context of reasoning in general.24

Imagine, for example, that one wishes to discover if a particular kind of plant (Y) isto be found in a particular country (X). If one were to adopt an empirical approach onewould have to mount an expedition to country X and to search it from top to bottomto see if an example of plant Y is to be found naturally growing there. Yet the sameinformation can be acquired by deduction. One researches the climatic conditions inwhich plant Y can grow naturally and then one researches the climate of country X; ifthe climatic situation require conditions, say condition A and condition B, for the plantto grow and these conditions are absent from country X one can conclude that plantY will not grow naturally in country X. Now what is important about this simpleexample is that it indicates two important conditions attaching to deduction.25 The firstis that Y, X, A and B are purely abstract entities; consequently, the content of Y, X, Aand B can change without the formal reasoning structure changing.26 One could, forexample, replace Y with animal rather than a plant and X with a physical event suchas mortality rather than a country. A could be replaced with a particular animal suchas cat. Thus all Ys (animals) are X (mortal); A (cat) is a Y and thus A is X. The secondcondition is that the abstract structure has to be a closed system that contains no gapsor ambiguities, for if there are any gaps or ambiguities in the major premise it wouldmake any logical conclusions unreliable.27

The point to be stressed with respect to these two conditions that attach to thesyllogism is that there has to be a necessary epistemological relation between thereasoning method and what might be called a scheme of intelligibility, namely astructure. Thus, the knowledge base in which the deduction is to operate has to havea certain internal coherence or structure before it becomes possible to reason deduc-tively. If there are gaps and ambiguities, the deductive conclusions will always beunreliable. This kind of deductive-structural reasoning is at the heart of scientificmethod. ‘Scientific knowledge’, as Granger explains, ‘of the kind concerned withexperience of the real world always consists of constructing abstract schemes ormodels of this experience, and to exploit, by means of logic and mathematics, therelations between the abstract elements of these models, so as to infer in the endproperties corresponding with sufficient precision to the empirical properties directlyobservable’.28 It is these abstract structures, and not the real-world phenomenon, thatforms the object of science. Thus, for example, if a scientist wishes to explain andpredict the behaviour of comets, she will have to construct a mathematical model ofthe comets and their spatial context and use this model to predict where a particularcomet will be at some future date. A model is, in other words, adequate, if it allows one

24. See also Twining and Miers, above n 7, pp 350–355.25. The example is taken from P Oléron Le raisonnement (Presses Universitaires de France,4th edn, 1995) p 52.26. D Vernant ‘Déduction’ in Lecourt, above n 5, p 339 at pp 339–340.27. This is what differentiates logic from argumentation: see generally C PlantinL’argumentation (Presses Universitaires de France, 2005).28. G-G Granger La science et les sciences (Presses Universitaires de France, 2nd edn, 1995)p 70.



to predict.29 But, this said, such explanations and predictions do not amount to someobjective ‘truth’; they are just more or less adequate.30 When one turns from thenatural sciences to a discipline like law it begs a question. What, ontologicallyspeaking, is the abstract structure which forms the logical model for legal deduction?

Here Alexander and Sherwin seem clear: it is a matter of rules whose words have‘semantic autonomy’ with the result ‘that rules themselves pick out the importantfeatures of individual cases’.31 A deductive method in law requires a structural modelof rules. Nevertheless, there arises an epistemological issue as to the validity of themodel in use.32 In the natural sciences, any model can (or should) be tested by itscorrespondence with the external object in question; if the comet does not appear inthe predicted location at the predicted time, the model may well be judged as inad-equate. But how does one test the validity of a legal model?33 The only two episte-mological possibilities, other than correspondence, are coherence and consensus.34

Consequently, one of the factors that helped give legal reasoning its ‘special’ nature isthe need to construct a discrete legal system in which the reasoning can operate. Thisis one reason why judges and jurists often claim a special status for legal reasoning.For example, according to Lord Goff of Chieveley(a former Law Lord), one role of theacademic lawyer is ‘to build up a systematic statement of the law on the relevant topicin coherent form, often combined with proposals of how the law can be beneficiallydeveloped in the future’.35 The law, then, is a ‘sealed system which can be studiedthrough methods unique to the “science of law”, and legal developments can beinterpreted, critiqued, and validated by reference to the internal logic of this sealedsystem’.36 The authority view of legal reasoning is that it is not just the methods thatmight be unique, but the system, for a legal reasoning system is distinguishable fromother discipline and knowledge systems.37 At one level this authoritative view38 doesnot as such contradict the Alexander and Sherwin assertion that judges use eitherordinary moral and ordinary empirical reasoning or, where the rule is clear, ordinarydeductive reasoning.39 The authors are, in effect, simply claiming that at the level ofreasoning law is not a sealed system. But, as will be seen, their assertion might wellresult in mystifying rather than demystifying reasoning at a higher level of abstractionin that they may well be failing to distinguish reasoning based on an authorityparadigm from reasoning based on an inquiry paradigm.

29. Consequently, some assert that Marxist theory has proved inadequate because its predic-tion about proletarian revolutions in the industrialised states never occurred: H Barreau‘Théorie’ in Lecourt, above n 5, p 1092 at p 1098.30. G Busino Sociologie des sciences et des techniques (Presses Universitaires de France,1998) pp 85–86.31. Alexander and Sherwin, above n 1, p 22.32. Twining and Miers, above n 7, pp 138–143.33. Ibid, pp 143–146.34. L Soler Introduction à l’épistémologie (Ellipses, 2000) pp 43–44.35. Lord Goff of Chieveley ‘Judge, jurist and legislature’ [1987] Denning Law Journal 79 at92. Quoted in DW Vick ‘Interdisciplinarity and the discipline of law’ (2004) 31 Journal of Lawand Society 163 at 178.36. Vick, ibid, at 178–17937. On systems theory and law, see G Teubner Law as an Autopoietic System (Blackwell,1993).38. It must be stressed again that ‘authority’ is to be understood in this context in terms of theauthority paradigm: what judges say in their judgments has a formal authority.39. See, eg, Alexander and Sherwin, above n 1, p 129.



3. ANALOGY

However before developing this point it is necessary to return to the official or judicialview of legal reasoning, for Lord Simon did not stop with the ‘complex syllogism’. Hewent on to say:

‘Where the decision does constitute new law, this may or may not beexpressly stated as a proposition of law: frequently the new law will appear onlyfrom subsequent comparison of, on the one hand, the material facts inherent in themajor premise with, on the other, the material facts which constitute the minorpremise. As a result of this comparison it will often be apparent that a rule has beenextended by an analogy expressed or implied.’40

In addition to logic, there is also, according to the official view, the technique ofreasoning by analogy.41 This technique is required, as the Law Lord went on toexplain, when attempting to discover if a precedent is applicable to the litigation factsbefore the court. If these facts are analogous to those of the precedent – thus, forexample, one must ask if electricity is analogous to water with regard to the applica-tion of the rule in Rylands v Fletcher42 to a case involving the escape of electricity43

– the precedent will govern the facts. But if they are not, the precedent is not binding.Yet what mental processes determine whether or not water is analogous to electricity?

At a general level reasoning by analogy is said to be a process whereby one goesfrom the particular to the particular via the induction of a structural model whoseepistemological quality is one of isomorphic form.44 One is not talking of a structurethat will serve as an abstract scheme of an empirical phenomenon that can then beexploited by logical manipulation to provide direct information about the phenom-enon. The foundation of analogy is in the correlation between two structures (A/B isin form similar to X/Y) and so the key reasoning elements are similarity and differ-ence. However, in scientific thinking, this similarity and difference attaches not to theobjects themselves but to the relations between two structures (that is to say therelations between A and B and between X and Y).45 In other words, the relations havepriority over the objects.46 Sometimes analogy is linked to induction,47 but, in scien-tific thinking, there is a vital difference between the two.48 Induction is about creatinga hierarchical taxonomical scheme in which A/B(/G) and X/Y(/G) are linked by acommon denominator, say G, that will then act as a describer to a higher genericcategory which will contain the species A/B/G and X/Y/G. It is a key process inscientific reductionism.49 That is to say, induction is one of the concepts used to

40. Lupton v FA and AB Ltd [1972] AC 634 at 659 (emphasis added).41. See also Twining and Miers, above n 7, pp 355–357.42. Rylands v Fletcher (1866) LR 1 Exch 265.43. National Telephone Co v Baker [1893] 2 Ch 186.44. It might be better to say from fact to fact: R Blanché Le raisonnement (Presses Univer-sitaires de France, 1973) p 177.45. A Benmakhlouf ‘Analogie’ in Lecourt, above n 5, p 35 p 39.46. Ibid, p 40.47. See, eg, N MacCormick Legal Reasoning and Legal Theory (Oxford University Press,1978) pp 161–194.48. Blanché, above n 44, p 182.49. If the taxonomical scheme does not permit itself to be structured in terms of genus andspecies, then, according to Michel Foucault, one is stopped from thinking in scientific terms: seehis reaction to Borges’ Chinese Encyclopedia: M Foucault Les mots et les choses (Gallimard,



reunify an area of knowledge that has had to be split up in order to understand theobjects of study.50 Reasoning by analogy, by contrast, is not about reductionism in anystructural sense; it is about using one structure to gain information about a separateand independent structure. Of course in scientific reasoning the problem with analogyis that there is no reliable method by which similarity and difference can themselvesbe tested one against another. To say that A/B (king and country?) is similar to X/Y(father and son?) is a proposition that cannot be subjected to the scientific falsificationtest, for establishing one difference does not undermine another similarity.

This weakness led to the eclipse of analogy as a valid form of reasoning during theEnlightenment51 and of course the weakness remains a problem. However analogicalreasoning has been reinvigorated by a shift in scientific thinking itself: the notion ofa model is now regarded as much a form of reasoning by analogy as a form ofreasoning by induction and deduction.52 It is a representation of the mind whosefunction is to simulate both this cognitive reality and the reality being studied. Onefactor that has helped provoke this shift towards analogy is the realisation that theelements of the model cannot be reduced entirely to symbolic knowledge. That is tosay, there is now a respectable school of thought that considers that all knowledgecannot be fully and completely expressed in linguistic propositions. When one rec-ognises a human face, is this a matter of propositional knowledge? The structure of themodel is, according to some, a form of non-symbolic knowledge; it is an ‘image’capable of representing patterns, dimensions and structures that cannot adequately beexpressed in two-dimensional linguistic form.53 Analogy takes the intellectus into aworld of three dimensions, thus giving a more accurate representation of the reality(res) being studied.54

Alexander and Sherwin assert that in law analogy is a means of reasoning fromcase to case.55 It ‘is supposed to act as a constraint on judicial decision making, eitherdictating results a fortiori, dictating parallel results in similar cases, or determiningwhen judges may avoid precedent rules’.56 They go on to assert, however, ‘that it doesnone of these things’.57 Similarities between cases, they say, are infinite and ‘thereforesome rule or principle is necessary to identify important similarities’ and once ‘a courthas identified such a rule or principle, the rule or principle, rather than the factualsimilarities themselves, determines the outcome of the pending case’.58 In otherwords, the authors appear to be arguing that in a system of reasoning based on the rulemodel, the idea that non-symbolic knowledge might play a role within this reasoningprocess is to be rejected on the grounds that it is ‘intuitive’ (as opposed to deductive)

1966) pp 7–11 (‘cette distorsion du classement qui nous empêcher de le penser, ce tableau sansespace coherent . . .’).50. J-M Besnier Les théories de la connaissance (Presses Universitaires de France, 2005)p 102.51. C Perelman and L Olbrechts-Tyteca Traité de l’argumentation (Éditions de l’Université deBruxelles, 1988) pp 1–5 and 527–542. Or, during the nineteenth century, rhetoric, of whichanalogy no doubt forms a part: Plantin, above n 27, pp 7–10.52. D Durand La systémique (Presses Universitaires de France, 5th edn, 1992) pp 51–53.53. J Delacour Le cerveau et l’esprit (Presses Universitaires de France, 1995) pp 34–42.54. Ibid, pp 32–33.55. Alexander and Sherwin, above n 1, p 66.56. Ibid, p 87.57. Ibid.58. Ibid, p 76.



and ‘will result in legal chaos’.59 What matters is the ‘process of ordinary reasoningthat refers to moral principles or rules to identify important differences [and presum-ably similarities] among cases’.60 In short, analogy is not, for Alexander and Sherwin,a form of reasoning.61

It is certainly true that analogy can be dangerous as a means of reasoning, espe-cially in situations where images are used in an imprecise or an arbitrary sense. Inthese situations, there is the great danger of creating pseudo-science and (or) myths,as, for example, in situations where one regards the universe as if it were a livingorganism or in treating living organisms, including societies, as if they were mechani-cal systems.62 Yet, it has to be asked if Alexander and Sherwin’s association of analogywith reasoning from one case to another63 is actually how analogy functions in judicialreasoning. In scientific thinking, as has been mentioned, analogy is not about simi-larity and difference between two objects; it is about the extension of relationsbetween objects in one domain to objects in another domain.64

For example, in Esso Petroleum v Southport Corporation Devlin J had to decide ifoil discharged from a ship trapped on a sandbank which polluted the claimant’s beachcausing serious financial loss was capable of giving rise to liability with or withoutnegligence. He said that ‘if one seeks an analogy from traffic on land, it is wellestablished that persons whose property adjoins the highway cannot complain ofdamage done by persons using the highway unless it is done negligently’.65 He thenlooked at the precedents and concluded that the ‘cases amplify the principle in Holmesv Mather66 which dealt with collisions on the highway itself and which is the foun-dation of the modern practice whereby a plaintiff in a running-down action sues fornegligence and not for trespass’.67 Thus, for Devlin J, the claimants were not liable forthe pollution since the captain of the vessel had not been at fault in discharging the oil.In the Court of Appeal, Denning LJ put the emphasis on a different line of cases thanthose cited by Devlin J. The Court of Appeal judge effectively drew an analogy notwith running down cases in the street but cases where one person had caused damageby pollution or creating a dangerous and ongoing state of affairs.68 Accordingly,Denning LJ was able to conclude that there was liability in public nuisance withoutproof of negligence by the claimant.69 It was up to the defendant to prove justificationfor the nuisance (the discharge of the oil), which, when one looked not at the act of thecaptain who discharged the oil to protect the safety of the crew, but at the biggerpicture, the defendant had not done.70 The bigger picture for Denning LJ was to shift

59. Ibid, p 87.60. Ibid, p 86.61. Ibid, p 129. MacCormick, however, sees analogy not as a means of arriving at anobligatory decision but as a step in the permissibility of a proposed decision: MacCormick,above n 47, pp 181–182 and 188–189.62. Although, of course, such analogies can be very valuable in science: Durand, above n 52,p 50.63. Alexander and Sherwin, above n 1, p 66.64. Benmakhlouf, above n 45, p 39.65. [1953] 3 WLR 773 at 777.66. (1875) LR 10 Exch 261.67. Above n 65, at 777.68. See, eg, Benjamin v Storr (1874) LR 9 CP 400.69. [1954] 2 QB 182 at 196–197.70. Ibid, at 197–198.



attention off the captain and on to the ship and then from the ship to its owner: theowners had put to sea an unseaworthy ship for which they should be liable in publicnuisance.71

Now it has to be admitted at once that it is possible to analyse ex post this case interms of the application of two different precedent rules.72 The first instance judgeapplied one rule induced out of one line of cases, while the Court of Appeal appliedanother rule induced out of a different line of cases.73 Yet, it is equally possible toargue that the decision was one made in terms of the factual image constructed by thereasoner. One judge constructed an image of a ship on the high seas being like a caron the high street; the analogical image was thus between two res (car/ship) on twotypes of location (road/sea lane). The other judge constructed an image based on twoquite different res, namely oil and, for example, pollution from horses.74 In otherwords, the reasoning functions at the level of factual image and the decision arrived atby the judge flows by way of analogy from the way this factual image was constructedby the reasoner.

Alexander and Sherwin have a response to this kind of argument. They assert thattheir own claim ‘is partly a normative one’ in that ‘purely intuitive analogical decisionmaking is not a form of reasoning’.75 If it is, they go on to assert, then ‘the choice ofan authority is no different from the flip of a coin’. The normative point, they say, isthis: ‘judicial decision making, as an exercise of authority . . . ought to entail morethan blind, untested, and untestable intuition’.76 There is not necessarily anythingwrong with such an argument and they are not the first to claim that analogy is notnecessarily a form of reasoning.77 However, this rule model argument does court thedanger that in demystifying legal reasoning they are excluding a dimension of rea-soning that is of central importance when reasoning about facts. What the two authorsare asserting is that reasoning in law is just ordinary axiomatic reasoning and thatso-called legal reasoning – the ‘mystification’ of common-law reasoning78 – whichuses analogy as a central tool for reasoning from precedents is not reasoning at all.

Yet this approach fails to bring to the attention of the reader not only the importanceof relations between elements but also that there has long been a dichotomy betweenaxiomatic and casuistic reasoning. As Jonsen and Toulmin point out:

‘for some 2500 years there have always been those who regarded ethics as atopic for theoretical discussion: a kind of “moral geometry” that makes particularethical perceptions more intelligible by showing how they exemplify rules or lawsthat are both more general and also capable of being known with greater certainty.

71. Ibid, at 198. The Court of Appeal thus reversed the decision of Devlin J, but his holdingwas reinstated by the House of Lords: [1956] AC 218.72. Or perhaps two different principles: MacCormick, above n 47, pp 152–194.73. See Alexander and Sherwin, above n 1, p 70.74. See the public nuisance case of Benjamin v Storr (1874) LR 9 CP 400.75. Alexander and Sherwin, above n 1, p 75.76. Ibid. Again it is worth recalling that MacCormick, although an adherent to the rule model,does not see analogy as mere intuition, but as a permissible step in the process towards a legalsolution: MacCormick, above n 47, pp 152–194.77. Blanché, above n 44, pp 184–185.78. Alexander and Sherwin, above n 1, pp 64ff.



[Such a view] treats ethics as a science, which gives a coherent and systematicaccount of human conduct of a kind that our unsystematized moral perceptions canonly hint at.’79

On the other hand, they continue, other thinkers have challenged this approach.Ethics deals with a multitude of concrete and particular situations which are sovariable that any attempt to reduce them to a set of universal and abstract rules isimpossible. Consequently, a subject like ethics cannot be a science.80 ‘Scientific’ or‘axiomatic’ reasoning is carried out in the language of formal logic, that is to say onereasons deductively in terms of the syllogism. ‘Practical arguments, by contrast,involve a wider range of factors than formal deductions and are read with an eye totheir occasion of use.’ Jonsen and Toulmin continue:

‘Instead of aiming at strict entailments, they draw on the outcomes of pre-vious experience, carrying over the procedures used to resolve earlier problems andreapplying them in new problematic situations. Practical arguments depend fortheir power on how closely the present circumstances resemble those of the earlierprecedent cases for which this particular type of argument was originally devised.So, in practical arguments, the truths and certitudes established in the precedentcases pass sideways, so as to provide “resolutions” of later problems . . .’81

This analysis certainly goes far in confirming that legal reasoning is seeminglylittle or no different from moral reasoning in general. One of the tensions between thecivil law tradition and the common law is said to be that the former is axiomatic in itsapproach (codification), while the latter is casuistic (precedents).82 However, it equallyhighlights the epistemological weakness of the Alexander and Sherwin analysis oflegal reasoning. Analogy may well be an important aspect of ordinary general rea-soning about facts.

The weakness, or one weakness, is the suggestion that all analogical reasoning canbe explained in terms of rule-based reasoning.83 Such an approach might be valuableif one is simply advancing a synchronic philosophical thesis about legal reasoning butit is inadequate to explain legal reasoning in any diachronically orientated approachsince it is clear from the well-documented history of methodology in the civil law thatone arrived at a deductive form of reasoning only at a particular point in time. Beforethe sixteenth century reasoning was casuistic in the Jonsen and Toulmin sense,84 and

79. AR Jonsen and S Toulmin The Abuse of Casuistry (University of California Press, 1988)p 19 (original emphasis).80. Ibid.81. Ibid, pp 34–35.82. See, eg, D Bureau ‘Codification’ in D Alland and S Rials (eds) Dictionnaire de la culturejuridique (Presses Universitaires de France, 2003) p 225 at p 227.83. Cf MacCormick, above n 47, pp 152–194.84. Space dictates that this historical analysis cannot be repeated here. However, an historicalanalysis can be found in G Samuel Epistemology and Method in Law (Ashgate, 2003). A moredetailed treatment is to be found in M Villey La formation de la pensée juridique moderne(Quadrige/Presses Universitaires de France, 2006 [1975]). One might note also that the historyof methodology in theology follows the same pattern as in law; see T Bedouelle La théolo-gie (Presses Universitaires de France, 2007) pp 59–62; E Brito Dogmatique (Théologie) inJ-Y Lacoste (ed) Dictionnaire critique de la théologie (Presses Universitaires de France, 2ndedn, 2007) p 412; A de Libera ‘Scholastique’ in Lacoste, ibid, p 1312; O Riaudel ‘Systématique(Théologie)’ in Lacoste, ibid, p 1367; JC Puddefoot ‘Sciences de la nature’ in Lacoste, ibid,p 1310.



if the methods employed by the medieval and Roman jurists are approached in termsof deduction from rules, then one is simply going to understand neither the importanceof dialectia, divisio, distinctiones, modi arguendi and the like in scholastic reasoningnor the way in which scientific thinking itself has developed.85 For example, thedevelopment of corporate personality or incorporeal property was not achievedthrough the induction of some general rule about the legal subject or legal object; itwas through the configuration of images (persona to persona repraesentata to personaficta) and the transfer of legal relations (again often expressed as images: vinculumiuris) from the physical person and physical object to fictional person and fictionalobject.86 Moreover, research in Artificial Intelligence has tended to indicate thatrule-based reasoning might not stand up to scientific testing. As two researchers havediscovered:

‘Traditional rule systems are brittle, and can be made to capture . . . detailedphenomena only awkwardly (eg, by having a separate rule for each “exception”). . . Rules and symbols have their most obvious use in building higher-level modelsthat abstract away from many of the detailed phenomena exhibited in behaviouraldata. When the details are not needed these are the models of choice (at least fordescription); but to model the actual mechanisms of cognition, more detailed, lessbrittle models are needed . . . [T]he behaviour of the cognitive system is not rule-governed, but rather is only (approximately) rule-described.’87

This is, perhaps, the reason why it has so far proved impossible to programme acomputer to think like a judge.

None of this, of course, proves, that the Alexander and Sherwin analysis of legalreasoning is wrong. But it does indicate that it is partial and, with respect to what theycall ‘ordinary’ and ‘empirical’ reasoning, inadequate. The authors simply do notprovide any serious social science analysis of these two forms of general reasoning,especially with regard to reasoning about social fact. And if one is going to talk interms of general reasoning, should one not be trying to locate legal reasoning withinthe context of social science – if not natural science – reasoning in general?

4. REASONING ABOUT FACTS: LESSONSFROM SOCIAL SCIENCE EPISTEMOLOGY

In order to investigate further this question, it might be valuable to pose another. Howmight an epistemologist of the social sciences view legal reasoning? Can work onmethodology and epistemology outside of the discipline of law provide any insights?Take, for example, Professor Berthelot’s work on social science epistemology. Theimportance of this work, which has been recognised not just by social scientists but byepistemologists of the natural sciences,88 lies in his identification of a number of

85. For the powerful use of analogy in the casuistic reasoning employed by the medievalRoman lawyers, see Y Thomas ‘L’extrême et l’ordinaire: remarques sur le cas médiéval de lacommunauté disparue’ in J-C Passeron and J Revel (eds) Penser par cas (Éditions de l’école deshautes études en sciences sociales, 2005) p 45.86. See generally Thomas, ibid.87. W Bechtel and A Abrahamsen Connectionism and the Mind (Basil Blackwell, 1991)p 227.88. See, eg, Granger, above n 28, pp 90–92.



schemes of intelligibility and the embedding of these schemes within a range of whatmight be seen as paradigm dichotomies.89 These schemes of intelligibility, along withthe paradigm orientations, have been discussed in depth elsewhere90 and so only asummary will be attempted here.91 However, this summary will be conducted withinthe context of legal reasoning with the object of indicating how Berthelot’s work canequally ‘demystify’ the methods adopted by judges. But instead of operating withinwhat Berthelot calls the ‘normative universe’, a universe according to him separatedfrom the other social sciences, a social scientist will want to focus on ‘the forms ofinteraction between “actors” ’.92

To do this one can start with a set of facts as outlined by Geoffrey Lane LJ in an oldand controversial tort case:

‘Since about 1905 cricket has been played on a field at the village of Lintz,County Durham. The village cricket ground is an important centre of village life inthe summer months. It provides pleasure and relaxation for many, whether asspectators or players. We are told that the land is owned by the National Coal Boardwho let it to the club. The National Coal Board had also been the owners of an areaof pasture land to the north of the cricket ground. No difficulties arose from the useof the ground until 1972. The pasture land had been sold by the National CoalBoard to the Stanley Urban District Council in 1965, but in about 1972 it wasbought from the council by Wimpeys Ltd. Wimpeys built a line of semi-detachedhouses there. One of those was bought by the plaintiffs. That is no 20, Brackenridge– the name of the road.’93

The judge went on to describe the cricket field and noted that there was only100–200 feet between the cricket pitch and the claimants’ garden and that it was‘therefore not surprising that since the houses were built, there have been a number ofoccasions on which cricket balls have been hit from the ground into the gardens of thevarious houses in Brackenridge’.94 He then continued:

‘The plaintiffs complained. At the beginning of the 1975 season, as a result,the club erected a galvanised chain-link fence above the wall. The total height of

89. See, in particular, J-M Berthelot L’intelligence du social (Presses Universitairesde France, 1990); Les vertus de l’incertitude (Presses Universitaires de France, 1996);J-M Berthelot ‘Programmes, paradigmes, disciplines: pluralité et unité des sciences sociales’in Berthelot, above n 9, p 457.90. See in particular G Samuel above n 84, pp 295–334; G Samuel ‘Taking methods seriously(part one) (2007) 2 Journal of Comparative Law 94 and ‘Taking methods seriously (part two)’(2007) 2 Journal of Comparative Law 210.91. Professor Berthelot has summarised them in the following way: ‘the causal scheme (if x,then y or y = f(x)); the functional scheme (S→X→S, where one phenomenon X is analysed fromthe position of its function – X→S – in a given system); the structural scheme (where X resultsfrom a system founded, like language, on disjunctive rules, A or not A); the hermeneuticalscheme (where X is the symptom, the expression of an underlying signification to be discoveredthrough interpretation); the actional scheme (where X is the outcome, within a given space, ofintentional actions); finally, the dialectical scheme (where X is the necessary outcome of thedevelopment of internal contradictions within a system)’: ‘Programmes, paradigmes, dis-ciplines: pluralité et unité des sciences sociales’ in Berthelot, above n 9, p 484 (translationG Samuel).92. Berthelot, ibid, p 12.93. Miller v Jackson [1977] QB 966 at 982.94. At 982.



wall and fence then became 14 feet 9 inches. It was an expensive operation costingsome £700. Since then the defendants have kept a tally of offending six-hits overthis boundary. In 1975 nine balls hit the fence and six went over it. In the 1976season four hit the fence and eight or nine went over it three on one single day –August 21. According to the plaintiffs, five of the 1975 ones landed in their gardenand two of those in 1976. On 26 July 1975, one just missed breaking the windowof a room in which their son was seated. He was then about 11 or 12.’95

As a result of these events, Geoffrey Lane LJ said, the plaintiffs claimed damagesand an injunction on the grounds of negligence and nuisance and the trial judge upheldtheir claim, granting an injunction, ‘the effect of which in practical terms will be tostop cricket from being played on the ground’.96 The case now found itself before theCourt of Appeal in which Lord Denning MR and Cumming-Bruce LJ (Geoffrey LaneLJ dissenting) lifted the injunction against the cricket club.

If one now turns to the schemes of intelligibility identified by Professor Berthelotand considers them in relation to this quite detailed set of facts, the results areinteresting. This set of facts can be understood, according to Berthelot’s scheme, in sixdifferent ways.97 First they can be subjected to a causal scheme of analysis wherebyfact B is understood as being causally dependent upon fact A. Thus, it is possible toenvisage that the claimant’s damage (fact B) is the causal result either of the claim-ants’ own act in buying a house so close to a cricket ground (fact A) or in insisting onusing their garden on days when cricket is played (alternative fact A).98

A second possibility is to adopt a functional analysis of these facts whereby onefact (A) is appreciated in terms of its function (fact B). The playing of cricket (fact A)has as its function the preservation of the environment together with providing thebenefit of an outdoor game (fact B) and thus cricket should be judged as reasonablebecause of this function.99

A third possibility is to apply a structural scheme whereby one fact (A) resultsfrom a system of relations with other facts (facts B, C and so on) in which the fact Ais not only an element in the structure but is also defined by its relation with the otherfacts (A, B, etc). The playing of cricket (fact element A) is part of a social structure,along with housing (fact element B), in which ordinary usages of land (fact elementC) is defined in relation to social activities in general, including the protection of theenvironment and the like (fact element D), and in which individuals can have theirrates adjusted so as to compensate for inconveniences caused by other legitimateactivities (fact element E).100 The imposing of liability on the cricket club woulddisturb the equilibrium of the social system.

A fourth possibility is to apply a hermeneutical scheme whereby fact A is regardedas a signifier of something deeper, the signified (fact B). This scheme of intelligibilityis normally used when the object is a text, a work of art or something similar, but it canbe used in respect of social facts as well.101 The evidence (fact A, the signifier)

95. At 983.96. At 983.97. The late Professor Berthelot himself never applied his schemes to the analysis of legalcases.98. See, eg, Lord Denning MR at 982.99. See, eg, Lord Denning MR at 976 and 980.100. See, eg, Lord Denning MR at 976, 977 and 981–982.101. In fact, Wilhelm Dilthey asserted that the difference between the natural sciences andsocial sciences was that the former privileged a causal scheme of intelligibility while the latter,



discloses a hostility on behalf of the claimant (fact B, the signified) that goes beyondwhat is reasonable and thus her objection to cricket balls merely signifies somethingdeeper.102 It signifies that she is an unreasonable person who is undeserving of aremedy when compared to the reasonable behaviour of those playing cricket. Anotherexample of this scheme of analysis is perhaps to be found in the majority’s view of thesignificance of cricket (fact A); it is not just an activity which has invaded the peaceof the claimants but an activity that has a particular social role in the well-being ofsociety (fact B).103

A fifth possibility is to apply an actional analysis whereby the facts are viewed interms of constructed individual actors and their intentions. The claimant (actor) is a‘newcomer who is no lover of cricket’ and, ‘[a]s it turns out, the female plaintiff hasdeveloped a somewhat obsessive attitude to the proximity of the cricket field and thecricketers who visit her to seek to recover their cricket balls’. Consequently, it ‘isreasonable to decide that during matches the family must keep out of the garden’.104

The problem is not the cricket but the mental attitude of these ‘actors’.A final approach is the dialectical scheme whereby fact B arises out of a contra-

diction between fact A and fact non-A. It is this approach that is particularly inevidence in the cricket case in that the whole dispute is reduced to ‘a contest . . . be-tween the interest of the public at large [fact A]; and the interest of a private individual[fact non-A]’.105 The judge at first instance had, it seemed, failed to appreciate thisdichotomy. Had he appreciated it, ‘he would . . . have been led to the conclusion thatthe plaintiffs having accepted the benefit of the open space marching with their landshould accept the restrictions on enjoyment of their garden which they may reasonablythink necessary’.106

What is interesting about the case of Miller v Jackson is the way all six of thesedifferent schemes of analysis are in evidence in the judgments. One is not talking hereof searching out rules of law and mechanically applying them to a set of facts in asyllogistic fashion. The importance of these schemes is the way they ‘insert’ them-selves so to speak within the actual facts and thus, depending on the scheme beingemployed, construct a factual situation which of itself suggests the legal result thatought to follow. A particularly striking example is the way both Lord Denning MR andCumming-Bruce LJ use an ‘actional’ approach to construct the female claimant in aparticular way: not only is she an individual who is a ‘newcomer’ but she is also‘obsessive’ to an unreasonable extent.107 The causal scheme also proves useful. Thedamage suffered by the ‘newcomers’ results not from the activity of cricket but fromthe fact that the newcomers chose to buy a house at the edge of a cricket field.108 Whenone turns to the dissenting judge the facts are schematically presented in a ratherdifferent way. While sympathetic to cricket as a social activity, Geoffrey Lane LJconstructs an alternative ‘actor’ (the female claimant) in which she is portrayed as not

which he described as Geiteswissenschaften, should privilege the hermeneutical scheme sincethe work of social scientists was one of interpretation of social fact. See S Mesure ‘Dilthey,Wilhelm, 1833–1911’ in Mesure and Savidan, above n 4, p 277.102. See, eg, Cumming-Bruce LJ at 989.103. See generally the judgment of Lord Denning MR.104. Cumming-Bruce LJ at 989.105. Lord Denning MR at 981.106. Cumming-Bruce LJ at 989.107. See, in particular, Cumming-Bruce LJ at 989.108. Lord Denning MR at 976.



being so abnormal.109 Of course the judges can operate at this factual level partly as aresult of legal concepts that appear descriptive rather than inherently normative. Thereduction of the problem to a confrontation between two ‘interests’ permits lawyers toemploy the dialectical scheme, while the notion of ‘reasonable’ allows one to con-struct particular actors. Notions such as ‘policy’ can also be useful in this respect inthat it allows judges to adopt a functional approach within a set of facts.

What these schemes do is to permit legal reasoners to move from facts to legalpropositions and back from legal propositions to facts with ease. They are the meansby which one goes backwards and forwards between the worlds of fact (descriptive)and law (normative). But description is never neutral and the importance of Berthe-lot’s work in the social sciences is that it permits lawyers to appreciate how the lawrelates to facts and vice versa. When lawyers describe and analyse facts, they do notdo this in a normative-free way; the scheme(s) that they adopt – and it must beemphasised that various schemes are usually employed in a combined way (theactional with the causal or the hermeneutical with the dialectical) – can be used topresent an image that may well contain an inherent normative message. Thus, bycombining the actional with the causal Lord Denning in particular is able to paint apicture, so to speak, of an unreasonable newcomer who is the cause of her ownmisfortune.

Alexander and Sherwin might well argue that none of this contradicts their ownthesis about legal reasoning. ‘The rule model of judicial decision making, whichallows the common law to function as law and to settle controversy’, they assert, ‘isdefensible only when judicial rules are justified as rules, and only when judicial rulesare generally followed’.110 And, they go on to state, the following of rules ‘depends onthe willingness of judges and actors to apply rules even when the results the rulesprescribe conflict with their own best judgment’.111 In other words, an empiricalanalysis of legal reasoning (schemes of intelligibility) can never undermine an ideal-istic analysis (strict rule model). Yet, it needs to be asked if this separation betweenrealism and normative idealism is justified when attempting to demystify an intellec-tual process that has to engage with facts. For the question is whether one wishes toexplain legal reasoning, to interpret it or to understand it. What, in short, does onemean by ‘demystification’? The problem is that jurists who wish to observe their ownreasoning, or at least observe the reasoning of others within their discipline, need toappreciate that they may not be the best observers. They tend to come to such anexercise with strongly pre-conceived ideas about the rule of law, the need for certainty,the evil of legal chaos and so on, and this ‘normative universe’ tends to assume acertain neutrality about facts. Thus, Alexander and Sherwin purport to take on the rulesceptics by arguing that rules have ‘semantic autonomy’ and that it follows from this‘that rules themselves pick out the important features of individual cases’.112 Thissemantic autonomy is in turn founded on the idea that rules have a ‘settlementfunction’ based on ‘a logical implication of rules’ rather than upon ‘a contestable viewabout the best way to pursue social ends’.113 Conceptual structuralism is, in otherwords, to be distinguished from social functionalism.

109. See, eg, his judgment at 987.110. Alexander and Sherwin, above n 1, p 127.111. Ibid.112. Ibid, p 22.113. Ibid, p 21.



Yet, it is arguable that the world of rules and the world of fact cannot be separatedin this way in that there is no world of fact as such. All facts have to be mediatedthrough a model which gives them meaning and sense and these models can vary.114

There are (for example) biological facts; there are mathematical facts; there arebehavioural facts; there are medical facts; and there are legal facts in as much as thereare facts that manifest themselves through descriptive concepts such as person, thing,damage, gain, loss, fault, interest, cause, abuse and the like. In other words, disciplinestend to develop not just their own set of abstract concepts but more descriptive notionsthat function inside the facts.

For example, Alexander and Sherwin frequently use as a hypothetical example aproblem about the keeping of bears. Now what counts as a ‘bear’ is not the thing alonebut a taxonomical zoological scheme that will determine whether or not the thing is abear. Equally, a problem concerning a rule about whether or not a driver has broken aspeeding rule will depend upon a mathematical model. Again a problem aboutwhether or not one has suffered personal injury will depend both upon a legal schemethat recognises some types of suffering but not others as damage and upon a medicalscheme as to what constitutes illness and injury.115 All facts, in other words, aremediated through a variety of schemes, concepts and taxonomies. To assert, then, thatthere is no specific form of reasoning that merits the title legal reasoning is bothhelpful and misleading. It is helpful in as much as it implies that ‘law schools shouldspend more time than they currently do teaching logic and empirical methods’116 butit is unhelpful in as much as it suggests that ‘empirical methods’ (which the twoauthors do not begin adequately to define or explain) are somehow discipline neutral.The position is far more complex in that mathematical facts imply one kind ofreasoning (pure deductive logic based on numbers), while medical facts may involveother more complex methods.117 Legal reasoning no doubt makes use of reasoningmethods and schemes from outside the discipline of law (just as medical reasoningdoes), but it is the way it combines these schemes with its own categories, conceptsand descriptive notions that might give it a certain speciality, at least at the level ofperceiving facts. Above all of this there is equally a paradigm question.

5. SCHEMES OF INTELLIGIBILITY AND LEGAL TEXTS

However, before examining this paradigm question, it might be valuable to return toschemes of intelligibility since these schemes are by no means confined to facts, forthey can be applied just as much to other objects such as literary works, films or indeedlegal texts themselves.118 Causality, functionalism, structuralism, hermeneutics,actionalism and dialectics are all possible methods that can be used in the explanationand application of, say, a statute or other written text.119 Thus, a legislative rule can beunderstood in a structural way, that is to say in relation to the other rules in the samepiece of legislation – or in respect of a wider conceptual structure – or in a functional

114. See generally Nadeau, above n 5.115. See eg Rothwell v Chemical and Insulating Co Ltd [2007] 3 WLR 876.116. Alexander and Sherwin, above n 1, p 234.117. Masquelet, above n 6, pp 119–123.118. See Samuel ‘Taking methods seriously (part one), above n 90.119. For an illustration how the different schemes explain the different critical approaches to afilm, see ibid.



way. What is the purpose of the rule in question? In order to understand this purposeor function the interpreter may adopt a hermeneutical approach, asking what does thelanguage signify in respect to the will of the legislator. Alternatively, the interpretermight apply a dialectical scheme by setting up a contradicting alternative.

Take, for example, another set of facts which gave rise to a problem of statutoryinterpretation:

‘My Lords, the respondent in this appeal used to live at 40 Hunslett Road,Quinton, Birmingham, along with his wife, three children and a grandchild. He andhis wife were the tenants of the house and the appellant council was their landlord.The ground floor of the house comprised a living room, kitchen, bathroom and WCcompartment. The latter was accessed from the kitchen through an interveningventilated space. There was no wash hand basin in the WC compartment, nor wasthere space to fit one there. Anyone using the WC could only wash their handseither in the kitchen sink or in the wash hand basin in the bathroom, which wassituated at the opposite side of the kitchen from the WC compartment. The mattercame before the local magistrates’ court following on a complaint by the respon-dent under s 82(1) of the Environmental Protection Act 1990 that he was aggrievedby the existence of a statutory nuisance. On 24 April 1998 the justices found thatthe council’s failure to provide a wash hand basin constituted a statutory nuisanceunder s 79(1)(a) of the Act as being prejudicial to health. The council appealedunsuccessfully to the Court of Appeal.’120

The Law Lord, Lord Clyde, went on to explain the interpretation point in issue:

‘The appeal concerns the construction of s 79(1)(a). This provision formspart of the definition of what may constitute a statutory nuisance for the purposesof the 1990 Act and reads as follows: “(a) any premises in such a state as to beprejudicial to health or a nuisance” . . . The sole issue . . . relates to the construc-tion of the word “state”.’121

How is the word ‘state’ to be interpreted? As far as Lord Clyde was concerned afunctional approach would provide the answer. Thus he continued:

‘In my judgment [a] broad view is to be preferred. It is important in the firstplace to take into account the purpose and intent of the legislation. One of theprincipal purposes of the public health legislation from the nineteenth centuryonwards has been to secure the prevention of illness and disease. As time haspassed and new concerns have arisen regarding pollution and the protection of theenvironment the variety of the risks has increased but the basic purpose of ensuringthat people may live and work in hygienic and sanitary conditions and that the risksof disease and ill-health may be minimised has remained unchanged. The conceptof the “statutory nuisance” is designed to identify the situations where risks tohealth may occur and the machinery provided in the successive enactments isdesigned to effect a simple and swift remedy wherever such a risk may be found toexist.’122

Lord Clyde makes some use of a structural approach as well, but only as a kind ofdialectical counterpart to his preferred functional analysis. He accordingly concludes:

120. Lord Clyde in Birmingham City Council v Oakley [2001] 1 AC 617 at 632–633.121. At 633.122. At 634–635.



‘I find nothing in the 1990 Act which supports the adoption of a narrowconstruction of the word “state” and the whole purpose of the legislation seems tome to point to a broad construction in the interests of the good health of the public.A narrow construction which would exclude consideration of a layout which wasinjurious to health, or the absence of a facility without which a risk to health wouldbe likely to arise, seems to me to run counter to the intent and purpose of the pastand the present legislation . . .’123

However, Lord Clyde’s dissenting approach can be compared to the hermeneuticalscheme adopted by one of the majority, Lord Hoffmann. This Law Lord stated:

‘My Lords, on the surface, this does not look like a very momentous case.The question is whether Mr and Mrs Oakley’s landlord should have provided themwith a basin in the WC. The statute which they say made it necessary to install oneis ambiguous. The language is capable of bearing such a construction. On the otherhand, it is very unlikely that this was what Parliament intended. So the courts havea choice. If they say that Mr and Mrs Oakley should have had a basin, landlords ofold houses and flats all over the country will have to install them. Local authoritiesand housing trusts will have to incur very considerable expense.’124

And he continued:

‘Under the surface, therefore, the case raises a question of great constitu-tional importance. When it comes to the expenditure of large sums of public andprivate money, who should make the decision? If the statute is clear, then of courseParliament has already made the decision and the courts merely enforce it. Butwhen the statute is doubtful, should judges decide? Or should they leave thedecision to democratically elected councillors or members of Parliament?’125

The word ‘state’ as signifier is, then, ambiguous in itself. But go deeper, says LordHoffmann, and one finds that it actually signifies an issue of great constitutionalsignificance. In turn, this significance implies another signified issue: given this greatconstitutional issue, Parliament cannot have ‘intended’ that the word ‘state’ wouldhave such a wide meaning. Lord Hoffmann goes on to reject the functional approachin respect of the facts in issue by claiming that the word ‘state’ is a concept whosemeaning has not changed with time. Thus he says:

‘I quite agree that when a statute employs a concept which may change incontent with advancing knowledge, technology or social standards, it should beinterpreted as it would be currently understood. The content may change but theconcept remains the same. The meaning of the statutory language remains unal-tered. So the concept of a vehicle has the same meaning today as it did in 1800,even though it includes methods of conveyance which would not have been imag-ined by a legislator of those days. The same is true of social standards. The conceptof cruelty is the same today as it was when the Bill of Rights 1688 (1 Will & Mary,sess 2, c 2) forbade the infliction of “cruel and unusual punishments” (section 10).But changes in social standards mean that punishments which would not have beenregarded as cruel in 1688 will be so regarded today.’126

123. At 635.124. At 628.125. At 628.126. At 631.



Nevertheless, this hermeneutical approach is not enough in itself to reject theclaimants’ interpretation of the word ‘state’ since this word, as Lord Hoffmannrecognised, is ambiguous and can actually cover the facts in issue. The majorityaccordingly turn to the dialectical scheme and set up a dichotomy which has the effectof excluding the application of the word ‘state’ to the facts in issue. In the words ofLord Millett:

‘In my view the Public Health Acts are concerned with the state of thepremises, not with their layout or with the facilities which ought to be installed inthem. In the present case the risk to health can be variously ascribed to the layoutof the premises (because the lavatory was poorly sited) or to the absence of adesirable facility (a washbasin in reasonable proximity to the lavatory). But it doesnot derive from the state of the premises . . .’127

And he concluded:

‘Whether the law should require washbasins to be installed near lavatories isa matter for Parliament, but the Public Health Acts are not a suitable vehicle. Theyare concerned with the state of premises and not with their physical layout or thefacilities to be provided in them. These are matters for building regulations, whichcan distinguish between new constructions and old.’128

By setting up a dialectical contradiction between ‘state’ and ‘layout’ the majoritysuccessfully excluded the facts in issue from the scope of s 79(1)(a) of the 1990 Act.Of course, Lord Steyn, who also dissented, was not impressed. The ‘distinctionbetween layout and state of the premises’, he said, ‘is not to be found in the statute,and it is certainly not indicated by the language of the provision or the context’. Hisstructural reading of the text is used as a means of emphasising that the distinction ‘ison analysis no more than a verbal technique to cut down the generality of the wordingof the modern statute’.129 Lord Steyn may well be right, but there is no doubting theeffectiveness of the dialectical approach in curing, so to speak, the ambiguity thatattached to the word ‘state’.

What is important about this role of schemes of intelligibility in the interpretationand application of a statute is that the schemes mediate between the text and the factsby inserting themselves within both worlds, so to speak, in order to permit the decisionmaker to reason in an apparently rational way. Now, according to Alexander andSherwin, the way judges ought to interpret statutes is through ‘commonplace inten-tionalist interpretation’ since the alternatives ‘are either incoherent, normatively dis-astrous, or just forms of intentionalism dressed up as something else’. Consequently,‘the interpreter need learn no reasoning skill other than the ordinary human one thatwe practice every day, namely deciphering another’s intended meaning’.130 If weapply this thesis to the case just discussed (Birmingham City Council v Oakley), onequestion for the judges is this: did the legislator intend that a distinction be made

127. At 637 (original emphasis).128. At 637.129. At 628.130. Alexander and Sherwin, above n 1, pp 218–219. Alexander and Sherwin’s use of the term‘incoherent’ in this context also fails to take account of MacCormick’s view that principleand analogy have an important role to play in coherence in law: see MacCormick, aboven 47, pp 152–194. MacCormick could be wrong, of course, but it might have been useful ifAlexander and Sherwin had engaged in depth with MacCormick’s point.



between ‘state’ and ‘layout’? Or perhaps a more general question could be posed: didthe legislator intend that a landlord be made criminally liable in the layout situationrevealed by the Birmingham case? One obvious answer is to say that Parliamentintended to promote public health, but this is inadequate as a guide to interpretation,say Alexander and Sherwin, because ‘the rule maker’s rules must have, and must beintended to have, a meaning that is independent of the rule maker’s intent at its highestlevel of generality’.131 If that lower level meaning about the ‘state’ of premises being‘prejudicial to health or a nuisance’ becomes difficult to determine because, forexample, there are doubts as to what the legislature intended, or because of some otherinfelicity that renders ambiguous the intended meaning, the rule should not beapplied.132 This is a helpful thesis in as much as it appears to explain Lord Hoffmann’sreasoning and decision. There is a serious ambiguity as to whether or not Parliamentintended the statute to cover situations where the nuisance state results from layout sothe rule should not apply. Yet is this syllogistic causal scheme (serious ambiguity as tointention means rule not to be applied, there is serious ambiguity, therefore rule not tobe applied) enough to explain what is actually going on in the majority judges’reasoning processes?

If one focuses purely on the rule, it is easy to see the attraction of Alexander andSherwin’s thesis. However, such an approach overlooks the point that what helpscreate the ambiguity is the differences in how the facts are perceived as a result of thediffering schemes of intelligibility.133 By applying a dialectical approach at the level offact one can seemingly create a dichotomy between ‘state’ of premises and ‘layout’.However, it is equally possible to say that the dichotomy is a false one in that ‘state’and ‘layout’ are not equivalent categories; premises can be in a ‘state’ prejudicial tohealth for a range of reasons including the architectural layout. So what really mattersto Lord Hoffmann (and possibly the other two Law Lords) is not this dichotomy butthe constitutional problem of unelected judges making decisions as to the expenditureof large sums of public and private money. In other words, if, at the factual level, onecreates a different image by expanding the picture to encompass the situation not justin the premises at 40 Hunslett Road but in town halls up and down the country, onearrives at a situation where the rule is bound to appear ambiguous. Think how differentthe picture would have been if the Law Lords never made any mention of publicauthorities but referred only to landlords and unfortunate tenants having to live inunhealthy premises.134 This throws in doubt Alexander and Sherwin’s assertion ‘thatrules themselves pick out the important features of individual cases’.135 Rather, it is thereverse; it is the way facts are perceived via schemes of intelligibility (and as will beseen institutional structures and paradigm orientations) that pick out the importantfeatures of rules.136

131. Alexander and Sherwin, above n 1 p 151.132. Ibid, at 166.133. Thus the presentation of facts is not just a question of an ‘appeal to emotion’: cf Twiningand Miers, above n 7, pp 367–368.134. For other examples as to how a judge can come to a different decision than some otherjudge by expanding the image, so to speak, see Samuel, above n 84, pp 200–213.135. Alexander and Sherwin, above n 1, p 22.136. See, in particular, Samuel, above n 84, pp 200–207. Some rule model theorists such asTwining and Miers would equally appear not to subscribe to this kind of assertion by Alexanderand Sherwin; see, eg, Twining and Miers, above n 7, pp 367–368.



6. INSTITUTIONAL STRUCTURES AND TESTABILITY

Causal, functional, hermeneutical and dialectical schemes of intelligibility must notbe allowed to eclipse the important role that structuralism as a scheme of intelligibilityplays in the creation of a factual image and the application of a rule. Take thefollowing well-known contractual rule that a party in breach of contract is liable indamages for the victim’s expectation interest. That is to say, the measure of damagesin contract is an award that will put the victim of a breach of contract in the positionhe would have been in had the contract been properly performed.137 C, an exception-ally tall man, contracts with D for the latter to build him a swimming pool in hisgarden, the contract stipulating that the maximum depth will be no less than seven feetsix inches. When the pool is complete, the deepest part is less than seven feet. Is Centitled to a swimming pool conforming exactly to the contract specifications, for, ifso, it will mean that the contractor will have to build a completely new swimming poolwhich will cost around £21,560?138 In other words, is C entitled to damages of£21,560? When these facts came before the English courts, the trial judge held that, asa question of fact (a question that once would have been decided by a jury), C hadreceived a ‘reasonable’ swimming pool and awarded him only around £2500 damages.A majority in the Court of Appeal reversed this decision on the ground that pacta suntservanda; the contract was not kept and thus logic dictated that C was entitled to hisexpectation interest. The House of Lords reinstated the trial judge’s decision on theground that it was not reasonable to award £21,560 damages. The pool itself wasreasonable, that is to say not defective, and thus the real damage was not in respect ofthe res (the pool) but in respect of the persona (the claimant); his real damage was themental distress at not receiving the pool that he expected.139

Of course this case can ex post be analysed only in terms of rules.140 It can, in otherwords, be rule-described. But nowhere does the rule ‘pick out the important feature’of the case, since it does not contain any pointer to what might be called the institu-tional construction of the facts. The strict logic of the expectation rule only comes intoplay if the ‘damage’ attaches to the ‘thing’ (swimming pool); and as soon as oneswitches the damage from the thing to the person (C), the whole factual constructioncompletely changes. Here, then, there is something special about legal reasoning.Judges can alter the factual model without having to worry about any correspondencewith an external reality, since the apparently descriptive notions of ‘damage’, ‘thing’and ‘person’ are as much ‘virtual’ fact as ‘actual’ fact.

Now this distinction between actual and virtual facts comes from the epistemologyof science where the French philosopher of science Gilles-Gaston Granger has arguedthat science does not take as its object actual facts but facts which have beenschematised. That is to say facts that are completely determined within a system ornetwork of concepts. These virtual facts are different from actual facts in that they areidealised: their connection with actual reality is not complete because they are deli-berately ‘simplified’ by the process of schematisation itself.141 Of course, such

137. See, eg, Principles of European Contract Law, art 9.502.138. One cannot, it seems, just carry on digging; the whole construction job has to be doneagain.139. Ruxley Electronics Ltd v Forsyth [1996] 1 AC 344.140. For example, one could talk in terms of the House of Lords applying the rule of efficientbreach of contract.141. Granger, above n 28, p 49.



transference from the natural sciences to law is dangerous. Yet, it is arguably a muchmore convincing analysis of how lawyers reason than continual references to ‘mom’giving requests to the ‘kids’.142 It is more convincing because what lawyers can dowith virtual facts are things that natural scientists cannot do; lawyers can constructsituations of ‘social reality’ without having to concern themselves too closely with thereality to which this construction supposedly corresponds. Thus, the judges conductedneither research into the state of mind of the claimant in the swimming pool case noran inquiry into what constitutes a reasonable as opposed to unreasonable performanceof a contract.

This kind of reasoning is not at all uncommon. To give one of the more extremeexamples, in several cases involving the question of whether or not the police orprosecuting authorities owed a duty of care to a person injured by negligence, thejudges have proffered factual reasons for refusing to impose a duty free of anyempirical evidence. Thus, Steyn LJ asserted:

‘While it is always tempting to yield to an argument based on the protectionof civil liberties, I have come to the conclusion that the interests of the wholecommunity are better served by not imposing a duty of care on the CPS.’

And he continued:

‘In my view, such a duty of care would tend to have an inhibiting effect onthe discharge by the CPS of its central function of prosecuting crime. It would insome cases lead to a defensive approach by prosecutors to their multifarious duties.It would introduce a risk that prosecutors would act so as to protect themselvesfrom claims of negligence. The CPS would have to spend valuable time and usescarce resources in order to prevent law suits in negligence against the CPS. Itwould generate a great deal of paper to guard against the risks of law suits. Thetime and energy of CPS lawyers would be diverted from concentrating on theirprime function of prosecuting offenders. That would be likely to happen not onlyduring the prosecution process but also when the CPS is sued in negligence byaggrieved defendants. The CPS would be constantly enmeshed in an avalanche ofinterlocutory civil proceedings and civil trials. That is a spectre that would bode illfor the efficiency of the CPS and the quality of our criminal justice system.’143

This assertion may or may not be true. Yet a sociologist who made such assertionswithout considerable statistical and other empirical evidence to support it wouldsimply not be taken seriously. Accordingly, while lawyers may well use ordinaryreasoning with respect to the application of rules, this kind of unsubstantiated asser-tion about social reality, in evidence in Steyn LJ’s judgment, is a form of professionalreasoning discourse (leaving aside the pub-bore or the opinionated taxi-driver) thatcan only take place in a world of virtual fact. It is permitted because notions such asan ‘interest’ (public interest) are seemingly descriptive but in truth are quasi-conceptual.144 Thus, ‘duty’ (or its absence), a purely conceptual notion that can existonly within an abstract rule, is given its concrete social ‘reality’ by reference to an

142. See, eg, Alexander and Sherwin, above n 1, p 141.143. Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 349. Verysimilar assertions have been made more recently in judgments rendered by the House of Lordsin the case of Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593.144. Or quasi-normative as one jurist puts it: P Dubouchet Sémiotique juridique: introductionà une science du droit (Presses Universitaires de France, 1990) pp 144–145.



apparently empirical object that on closer inspection is more virtual than actual.Consequently, if this world of virtual fact results from law being a system of rules,then merely studying reasoning and rules, in the way that Alexander and Sherwinsuggest, is, with respect, inadequate. One needs equally to study how lawyers con-struct and reason about their facts.

7. PARADIGMS

It is not just lawyers who can construct theory models without having to concernthemselves too much with external reality. Theology is a discipline that also has thisluxury. Theological thinkers construct theories or models about God without thesetheories or models being in any way testable in correspondence to some externalreality. How, then, are such theories and models to be verified? What epistemologicalparadigm gives validity to these intellectual constructions?

Several points arise here. The first, of course, is the notion of a paradigm itself:what does the word mean? The term, as a term of art, comes largely from a work bythe philosopher of science Thomas Kuhn145 who used it to give expression to the ideaof ‘a body of theoretical, methodological and pragmatic principles not necessarilyprecise or explicit but functioning nevertheless, which are ingrained by the membersof a discipline or scientific specialism and which underpins the actual practices of thiscollectivity’.146 In the social sciences, however, the term has been used indiscrimi-nately and often in situations where expressions such as model or theory would be tooprecise to define what is really a body of attitudes or behaviour.147 Given this flexibilitywhich attaches to the term, it might be useful to employ it in the social sciences to giveexpression to a number of epistemological dichotomies that underpin theories,models, schemes of intelligibility and reasoning methods – dichotomies such as natureversus culture, order versus chaos, holism versus individualism and so on.148

The second point is the relevance of these – or some of these – dichotomies to legalreasoning. What law shares with theology is a paradigm orientation that might bedescribed as one of authority rather than inquiry. In the natural sciences and most ofthe human sciences, what motivates research and reasoning is a spirit of inquiry and,in turn, this inquiry paradigm requires that such research be subject to a means ofvalidation. In the natural sciences, one classic test, associated with Karl Popper, wasthe criterion of refutability.149 Yet, there is an alternative paradigm in which episte-mological validity arises not from scientific inquiry but uniquely from authority. Thisauthority paradigm is well described by a writer on religion:

‘Human beings, in nearly all cultures, have long engaged in a rather strangeactivity. They have taken a literary text, given it special status and attempted to liveaccording to its precepts. These texts are usually of considerable antiquity yet theyare expected to throw light on situations that their authors could not have imagined.

145. T Kuhn The Structure of Scientific Revolutions (University of Chicago Press, 2nd edn,1970).146. L Soler ‘Paradigme’ in Mesure and Savidan, above n 4, p 843 at p 843.147. Berthelot ‘Programmes, paradigmes, disciplines’, above n 89, p 457.148. See further Samuel ‘Taking methods seriously (part one), above n 90, at 110–115.149. See generally K Popper The Logic of Scientific Discovery (Hutchinson, 1959; Routledgeedn, 2002). See also A Boyer ‘Réfutabilité’ in Lecourt, above n 5, p 958.



In times of crisis, people turn to their scriptures with renewed zest and, with muchcreative ingenuity, compel them to speak to their current predicament.’150

In the Middle Ages, this paradigm was the general and dominant one and it was notuntil the Humanist revolution of the sixteenth century that there was a shift from theauthority of the text to the authority of systems.151 This shift was of importance bothfor theology and for law because it involved a change not just of methods but ofepistemological validation. What gave a theory or model, which could not be tested bycorrespondence with an external reality, its epistemological validity was the internalcoherence of the system and here the paradigm discipline, so to speak, was math-ematics.152

Theology shares, then, with mathematics the possibility of constructing a model ortheory without having to suppose that there is some external reality to which thismodel must conform.153 To an extent the same is true of law. Lawyers can constructtheories and models of law with only a limited reference to social reality and, inconsequence, it has been able to fashion legal institutions such as corporate person-ality, intellectual property, public interest, ownership and the like without havingto concern itself too much with the physical existence of these entities.154 Moreover,as with theology, legal thought and method in the civilian tradition has, from thesixteenth century until relatively recently, tried to associate itself with mathemati-cal thinking. ‘The procedures of mathematical reasoning – the mos geometricus –constituted’, for the jurist Jean Domat and many of those that followed him, ‘aninfallible method, which could be employed in all areas and in particular law’.155

The text and coherence remain, in the civil law world, the foundations upon whichlaw gains its epistemological validity. Of course the link with mathematics is by nomeans as strong as it once was, but the link has still not been broken even if ‘thereduction of law to equations is an illusion’.156 Law and mathematics remain strongpartners in continental legal thinking.157 Some of this rigorous logical thinking seepedinto the common law during the nineteenth and first half of the twentieth century, butin the end it got undermined by Realism and the shift towards functionalism.158

Nevertheless, the authority paradigm continues to exert an influence on legal reason-ing in several important ways. It finds perhaps its greatest expression in the idea thatlegal rules, like animals, should be the subject of a rigorous legal taxonomy in order

150. K Armstrong ‘Unholy strictures’ The Guardian 11 August 2005.151. With respect to theology, see Riaudel, above n 84, p 1367.152. Dubouchet, above n 144, pp 37–70.153. JC Puddefoot ‘Mathématiques’ in Lacoste, above n 84, p 860.154. Although there was an import debate in Germany as to whether corporate personality wasa fiction or a concept reflecting a reality: JW Jones Historical Introduction to the Theory of Law(Oxford University Press, 1940) pp 74–78.155. M-F Renoux-Zagamé ‘Domat, Jean’ in P Arabeyre, J-L Halpérin and J Krynen (eds)Dictionnaire historique des juristes français XIIe–XXe (Presses Universitaires de France, 2007)p 254 at p 255. And see Dubouchet, above n 144, pp 37–70.156. J-L Bergel Théorie générale du droit (Dalloz, 4th edn, 2003) p 292.157. See, eg, M-L Mathieu-Izorche Le raisonnement juridique (Presses Universitaires deFrance, 2001).158. For an excellent account with respect to property law, see K Gray and S Gray ‘The rhetoricof reality’ in J Getzler (ed) Rationalizing Property, Equity and Trusts (Butterworths, 2003)p 204.



that legal solutions can be deduced from a closed model of legal rules.159 Moreover,the authority paradigm is given added weight by legal theorists – and not just thepositivists – who regard the ontological basis of law as consisting of legal rules whoseauthority can never be questioned once such rules are constitutionally valid.160 Ofcourse, such rules can be criticised; and while this can be done only with due respect‘to the internal logic of this sealed system’,161 such doctrinal research ought not to bedismissed since that ‘underestimates the sophistication of the interpretative tools thathave been developed and the critical techniques applied in doctrinal analysis’.162

Scholars working in the European and American tradition evaluate and test legal rulesagainst normative conceptions of justice often, in the common law world at least, notjust in relation to ideas of internal coherence but equally in respect of norms frommoral philosophy.163 In addition, the authority paradigm finds expression in the rela-tionship between rules and social fact. Judges, as has been mentioned, feel littleintellectual need to justify their empirical assertions and this is, so it has been arguedearlier, because actual social reality is not really the object of legal ‘science’. Theobject is a set of ‘virtual’ facts governed not so much by correspondence with anexternal object but by the categories, concepts, institutions (person and thing) and‘descriptive’ notions (damage, fault and the like) all of which construct a world assealed as the rules themselves.164

The importance of this authority paradigm to legal reasoning is the third point ofrelevance. It may well be that, on occasions, ‘legal texts containing . . . infelicities areno more problematic than infelicitous instructions left us by Mom or the kids’ and thuslegal ‘reasoning from canonical legal texts [is] essentially no different from reasoningfrom other requests or demands that we take to be normative’.165 Yet, legal reasoningas a whole does need to be seen within the context of the authority paradigm in orderthat such reasoning can clearly be differentiated from reasoning in other social sciencedisciplines where the governing paradigm is that of inquiry. This latter paradigmrequires that assertions be supported by evidence and be, at least in principle, test-able.166 In law, and some other disciplines like theology and perhaps political science,the reasoning is such that it need be related only (according to Alexander and Sherwin)to the intention of the author, a fact in the end that is constructed by the interpreter(however diligently) and one that is not really open to any empirical testing. This doesnot in itself undermine the Alexander and Sherwin thesis that this legal reasoning is nodifferent from ordinary reasoning where one has to interpret the intention of the authorof the normative instructions. But it does eclipse some real epistemological aspects ofreasoning functioning entirely within an authority paradigm.

159. See on this debate, G Samuel ‘Can Gaius really be compared to Darwin?’ (2000) 49International and Comparative Law Quarterly 297; G Samuel ‘English private law: old and newthinking in the taxonomy debate (2004) 24 Oxford Journal of Legal Studies 335.160. See on this authority problem, O Pfersmann ‘Normativisme et décisionnisme’ inP Raynaud and S Rials (eds) Dictionnaire de philosophie politique (Presses Universitairesde France, 3rd edn, 2003) p 508.161. Vick, above n 35, at 179.162. Ibid.163. Ibid.164. A Riles ‘Comparative law and socio-legal studies’ in M Reimann and R Zimmermann(eds) The Oxford Handbook of Comparative Law (Oxford University Press, 2006) 775 atpp 808–809.165. Alexander and Sherwin, above n 1, p 166.166. H Barreau ‘Test’ in Lecourt, above n 5, p 1085.



For example, a child struggling to interpret a parent’s ambiguous instruction is aform of reasoning that ought to be seen in the context of reasoning in the family, justas the employee trying to understand his employer’s instruction needs to be consid-ered in the context of the workplace. There is probably a very strong element offunctional reasoning in both these social situations. What does the mother or theemployer want the interpreter actually to do? If the ambiguity suggests some absurdact, then the child or employee is going to construct the author intention in such a wayas to avoid doing an act that may even be physically dangerous to the child oremployee. It may not, then, be the intention that motivates the decision not to do theabsurd act but the consequences arising out of doing the act. The interpreter isconstructing a range of possible scenarios and, thus, is reasoning as much about factas about the rule. In addition, both the child and the employee may well take intoconsideration other factors. Is there a history of this parent or this employer issuingdaft instructions? What will be the consequences, in terms of possible punishment, ofdisobeying an instruction? And so on.

The lawyer, in contrast, is likely to be governed by a different reasoning contextsince the interpretation issue always arises in the context of a set of facts where theinterpreter has to arrive at only one of two possibilities, namely to find for or againstthe claimant. The judge can make one or other of the decisions within the authorityparadigm without having to concern herself with some issues that would concern thechild and employee. The conscientious judge would, of course, not wish to make anabsurd decision and would always have an eye to future problems involving the sametext. Moreover, like Lord Hoffmann, the judge may well be sensitive to the conse-quences (political, economic or social) of any decision. Yet, the authority paradigmisolates the judge in the courtroom from any physical consequences from her reason-ing and decision.167 No doubt the authority paradigm is important in the family andworkplace situation as well, but it is not absolute because the interpreter will also beapplying an inquiry paradigm with respect to the physical consequences that he or shemay incur as a result of his or her interpretative decision.

8. ASKING THE ONTOLOGICAL AND EPISTEMOLOGICAL QUESTIONS

Alexander and Sherwin might no doubt argue that all this is hopelessly confused. Yet,their own reasoning is curious. They attack the idea of ‘dynamic statutory interpreta-tion’ or ‘practical reason interpretation’ which they define as being the norm whereby‘the interpreter should look at some combination of various of the following items: themeanings of the author’s words, the author’s purposes, norms regarding institutionalrelationships, rule-of-law virtues, social norms, efficiency, and justice’.168 Such rea-soning is, for them, ‘hopelessly confused’.169 And to show why it is confused theyassert that one must disaggregate the ontological question, the epistemological ques-tion and the authority question.170 The ontological question for Alexander and Sherwinis what the meaning of the statute is; the epistemological question concerns whatthings one should look to in order best to discover the meaning of the statute; and the

167. Cf on this point MacCormick, above n 47, pp 73–99.168. Alexander and Sherwin, above n 1, p 213.169. Ibid, p 214.170. Ibid. The authors emphasise these terms in their text.



authority question is what one should do in response to the meaning of the statute.171

Dynamic interpretation, they argue, involves the idea that the statute ontologicallyconsists of a combination of all the factors mentioned above, which, in turn, means,for example, that factual matters are mixed with normative ones. ‘If’, the authors thengo on to ask, ‘the dynamic-interpretation approach is ontological – if it purports to tellus what statutes are – then why is not the metaphysical mixing of facts about one time,facts about another, and moral norms as incomprehensible as asking someone to mixpi, green, the categorical imperative, and the Civil War?’

There are several responses to this question. The first is to say that many episte-mologists would not accept their premise that the ontological question is what themeaning of the statute is. It can be argued that what is in issue here is a relationshipbetween the intellectus and res that cannot be determined simply by looking at the res(the meaning of the statute) divorced from the schemes of intelligibility and paradigmorientations through which the res and the intellectus communicate.172 In other words,it is by no means that simple, in the social sciences (and even on occasions in thenatural sciences), to disaggregate the ontological question from the epistemologicalquestion because one can only understand what actually exists through epistemologi-cal models and schemes.173 The epistemological history of social science reasoning isone of a plurality of paradigms – or according to some programmes – and schemes ofintelligibility with the result that knowledge is dependent upon which programme andscheme is in play.174 It is a matter of epistemological pluralism.175 Thus, there is no oneanswer to the question whether forests or society exist ontologically; much willdepend upon whether the paradigm in play is methodological individualism (trees,individuals) or holism. There is no one right answer as is illustrated by the disciplineof history. It is not, observes Dominique Desjeux, just because one works on a historyde longue durée that there are no individual heroes or great men; if one focuses on theindividual it is normal not to see social classes or institutions but this does not meanthat they do not exist.176

A second response concerns the analogy itself. Pi, green, the categorical imperativeand the Civil War are analogies that do not match the pluralistic nature of socialscience reasoning and the nature of how facts are described. There is no scheme ofintelligibility that mixes a mathematical concept, a colour, a normative notion and anhistorical event, whereas a hermeneutical scheme of intelligibility will employ history,values, author intention and the like in order to reach beyond the signifier to discoverwhat is signified.177 Alexander and Sherwin might complain that social scientists arejust hopelessly confused, but as Dominque Desjeux implicity points out this is likecomplaining that when travelling by car to an address in an unfamiliar city in anunfamiliar part of the country there is no single map which contains all the necessaryinformation, that is to say information on the motorways linking major cities, the

171. Ibid.172. See, eg, R Nadeau ‘Objectivité’ in Lecourt, above n 5, p 818.173. Ibid, at 823.174. Berthelot ‘Programmes, paradigmes, disciplines, above n 89; Épistémologie des scienceshumaines, op.cit.175. Berthelot, above n 9, pp 381–382.176. D Desjeux Les sciences sociales (Pressess Universitaires de France, 2004) p 95.177. J-Y Lacoste ‘Herméneutique’ in Lacoste Dictionnaire critique de la théologie, above n 84,p 633.



layout of suburbs and the detailed street plans.178 One has to have at least threeseparate maps of different scales. In other words, Alexander and Sherwin are paintinga very simplistic picture of social science knowledge and the nature of social sciencereasoning. Social reality cannot, in short, be reduced to a single equation.179 Andtrying to understand a statute is a hermeneutical exercise in which one brings into playa plurality of schemes of intelligibility and paradigm orientations in order that thestatute can ‘speak’ to the interpreter. Metaphorically speaking, Alexander and Sherwinare asserting, then, that there is just one map and only one that the driver needs; to addfurther maps will, they seemingly imply, just make the journey confusing.

CONCLUDING REMARK

The third, and concluding, point to make follows on from these other points. If theirview of legal reasoning is correct, then a social science epistemologist might wellconclude that legal reasoning is indeed something special. So special, in fact, that ithas little or nothing to offer social science theorists. As it happens, such a view of lawwas taken by the French social science epistemologist. J-M Berthelot in his editedwork on epistemology in social science did not invite a chapter on law.180 Now it mustbe said at once that this exclusion can be criticised.181 Yet, if Professor Berthelot hadbefore him a copy of Alexander and Sherwin’s attempt to ‘demystify’ legal reasoning,he might well have been convinced that his decision to exclude law was not in the endunjustified.182 He would certainly have applauded Alexander and Sherwin’s view thatlegal reasoning was nothing special; that it made use of general reasoning methods.183

And he would no doubt have been intrigued by the author’s attempt to create anepistemological world centred entirely on the ontological existence of rules and theirmeaning. However, in creating such a world he might have argued that it was a worldthat had little correspondence with social reality (how judges actually reason) andlittle connection with ‘empirical reasoning’, at least as understood by a social scientist(disciplines, schemes of intelligibility and paradigms and their relationship with socialfacts).184 It was a world of normative simplicity built upon an engagement with otherlegal theorists whose own rule-dominated worlds are equally simple in a socialscience epistemological sense.

Legal philosophers can of course get away with this kind of model buildingbecause they operate in a discipline and paradigm environment that is free from therigours of falsification and testability. Like theologists they are preaching to a com-munité croyante. They can fantasise within some normative universe – and in fairnessoften very carefully and rationally – about what judges ought to be doing. And whatthey do not see, or what they do not want to see, can be denied existence under someontological thesis that does not really need to measure itself against an external reality(although Artificial Intelligence research may well test the epistemological value ofmany legal theories).

178. Desjeux, above n 176, pp 12–14.179. Ibid, p 116.180. Berthelot, above n 9, pp 11–13.181. See G Samuel ‘Is law really a social science? A view from comparative law’ [2008]Cambridge Law Journal 288.182. But sadly Professor Bethelot died in 2004.183. Berthelot, above n 9, p 12.184. Ibid, pp 12–15.



Law, one might conclude, is a conceptual world of authority very similar to that oftheology in which theorists do not strive to build their models of how lawyers reasonin the expectation that they might correspond to some external reality. What they arestriving for is the imposition of an authority ideology through the pretence that it is atheory that better explains ‘the reasoning methods judges use’ by showing how ‘courtsoften insist that they are reasoning in ways we say they are not’.185 No doubt the judgesdo not reason in the way they claim to do, but they, equally, have an ideology topropound.186 The authority paradigm demands that law be certain and chaos bebanished and thus many legal theorists continually dream of coherence and math-ematical logic (or slightly weaker versions thereof) often buttressed by an appeal tomorality and (or) justice.187 Not that the social science epistemologist is claimingsome special status with respect to the problem of ideology or chaos or morality orjustice. All that the serious social science epistemologist is trying to do is connect theintellectus and the res; to ask how texts and how facts can communicate with thehuman actor whose intentions (intellectus) form a very part of the object (res) beingstudied. In asking how social scientists reason, the answers are always complex andpluralistic. Not surprisingly, this has little appeal to jurists committed to the authorityparadigm and to a world of textual certainty. Such jurists assert social consequenceswithout any need for empirical justification.188 Yet, the great danger of trying tofashion an epistemology from within this world of authority and desired textualcertainty is that the legal theorist ends up – and here one is borrowing a rather cruelexpression from a writer on religious affairs equally disenchanted with some of thetheorising in his own discipline – just ‘rearranging the deckchairs on a fantasy ship’.189

185. Alexander and Sherwin, above n 1, p 4.186. See, eg, Lord Donaldson in X Ltd v Morgan-Grampian plc [1990] 2 WLR 421 at 432:‘Lord Hailsham once said that “the rule of law is a confidence trick”. What he meant was thatthe rule of law depends upon public confidence and public acceptance of the system wherebyParliament makes the laws, the courts enforce them and the vast majority of citizens acceptthem until they can get them changed’.187. See generally, eg, MacCormick, above n 47.188. See, eg, the statement by Alexander and Sherwin, above n 1, p 17: ‘For in a communityof rule-sensitive particularists, everyone would realize that no one was treating rules as seriousrules. Therefore, the settlement value of rules would be reduced, which in turn would mean lessexpected compliances with rules and therefore less settlement value, and so on until the rulescollapsed completely as serious rules’. This may or may not be true, but the authors feel underno obligation to offer the reader any empirical evidence as to the validity of this predic-tion. Consequently is their assertion that different from the assertion by one William Miller(1782–1849) who applied scientific and mathematical methods to the Book of Revelationand concluded that the Second Coming of Christ would occur in the year of 1843? On thisMiller assertion see K Armstrong The Battle for God: Fundamentalism in Judaism, Christianityand Islam (Harper Perennial, 2004) pp 90–91. Armstrong observes that the failure of Christ toreturn did not mean the end of millenialism: ‘other sects . . . adjusted the eschatological time-table, and, by eschewing precise predictions, enabled new generations of Americans to lookforward to an imminent End of history’ (p 91). Perhaps Miller should have become a legaltheorist.189. D Bradnack ‘Face to faith’ The Guardian 6 September 2008 at 35.



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Can legal reasoning be demystified?