All or nothing

Legal decision-making is often presented as a craft understood by generations of judges and lawyers. Judges decide cases on the basis of meanings attributed to authoritative texts in various ways but not necessarily intended by the authors of the texts.

Traditionally recognized methods of legal decision-making are attrac­tive because they appear to constrain judicial decision-making without either displacing judges' moral judgment or binding judges to conform strictly to the intended meaning of rules. Judges must follow the law and avoid imposing their personal beliefs on litigants, but what binds them is the spirit of the law rather than the intended prescriptions of lawmakers. The result is an internally coherent body of interpre­tive rulings and common law that supports a stable society but is also capable of adapting to changes in social and economic conditions and community norms.

We do not accept this description of legal decision-making, because we do not believe it rests on a process of reason. In our view, supposed interpretations of legal texts that depart from the lawmaker's intent are not in fact interpretations, but independent exercises of lawmaking authority. Analogical decision-making based on similarities between cases is either purely intuitive or mediated by norms fashioned through ordinary reasoning that determines whether the cases are ‘similar'. Similarly, legal ‘reasons' do not arise from past facts and out­comes without the intervention of independent moral and empirical reasoning about what facts matter in current decision-making.

It follows, in our view, that judges have no special interpretive or decisional tools. They reason as all reasoners do, either deductively based on the intentions expressed in authoritative rules, or by the same combination of moral and empirical reasoning that all decision­makers rely upon in deciding what to do. Their craft consists of their knowledge of posited rules and legal procedures, their familiarity with the ways in which past judges have resolved questions of legal importance, and, perhaps, a variety of traditional habits that involve the study of past cases and have the incidental effect of enlarging the current judge's perspective beyond the facts of her own current case.

The arguments we have made in this book should not be understood as a call for significant changes in legal education or legal practice. Wide exposure to the body of law, the rules and standards courts have announced in different areas of law, and, particularly, the types of moral and empirical considerations that enter into a well-reasoned decision, are essential for anyone who works with legal problems. Studying past decisions in close detail also provides insight into the ways in which judges ascertain the intended meaning of statutes and precedent rules, as well as the mistakes they sometimes make in processing authorita­tive statements. Attention to the past also illuminates the role that settlement and coordination play in law. Our main recommendation would be that law schools spend more time than they currently do teaching logic and empirical methods, which can help students under­stand both what judges miss and what they do right.

The positions we have taken run contrary to much received under­standing of legal reasoning. The decisional methods we reject as misleading or logically unsupported have been practiced by skilled jurists and praised by respected commentators as the essence of judi­cial practice. We believe the reason for the broad appeal of the types of ‘legal reasoning' we have called into question is that they offer a middle ground between unconstrained reasoning, which is vulnerable to error, and unreasoned acceptance of authority, which leaves no room for moral correctness. Descriptions of legal decision-making that seem to avoid this dilemma are seductive, even if they lack a foundation in logic.

Because we reject the forms of mystification we have described, we are left with the basic dilemma of law, which pits settlement and cer­tainty against particularized reasoning. In our view, there is no middle ground between unconstrained natural reason and authoritative rules applied according to their intended meaning. Efforts to locate legal reasoning in the middle ground between these poles are seductive but unavailing, because the middle ground does not exist.