Further thoughts on the rationality and sustainability of common law practice

In the last section, we considered some benefits and risks of conven­tional methods of legal argumentation and decision-making. The tra­ditional practices just discussed require parties and judges to make factual comparisons between cases for various purposes.

In this final section, we assume for purposes of argument that the net effect of traditional patterns of legal argument and decision-making is positive. We turn here to some additional, and possibly more seri­ous, questions about customary practice. We have no clear answers, although we suggest that the common law may ultimately rest on unstable ground.

The first problem is a problem of rationality, which may have moral implications as well. The traditional common law methods we have discussed - analogical decision-making, ‘a fortiori’ decision-making, decision-making based on ‘reasons' implied by past opinions, and construction of legal principles - are not conscious strategies for improvement of judicial rule-making skills. At best, certain decisional habits and processes that judges have developed to resolve disputes have had the incidental effect of controlling errors in judicial rules. An accidental effect of this type is difficult to reconcile with the ideal of legal decision-making as a publicly accessible process based on reason.

This element of irrationality is especially evident in the case of ana­logical decision-making that rests on an intuition of similarity between cases. Judges who use this method to resolve disputes are deciding on grounds that are logically unavailable. Judges who rely on ‘reasons' derived from the facts and outcomes of prior cases or on legal prin­ciples are similarly placing convention above logic.

Of course, indirection and irrationality are common features of any legal system that relies on determinate rules to govern conduct or decisions (see Schelling 1980; Alexander 1985). Rules may serve moral values, but they do so indirectly. Their purpose is to reduce the errors of natural reasoning by providing answers to moral and practical ques­tions in a determinate form. Owing to their determinacy, the answers rules give will sometimes be wrong, and following them regularly will mean acting against the balance of reason in some cases. Accordingly, as long as rationality is measured at the moment of action rather than across a period of time (see Bratman 1987), following rules against one's better judgment is not rational (see Sherwin 2018; Sherwin forthcoming). To accept the authority of rules, and thereby obtain the benefits of rules, a judge must convince herself that applying the rule in all cases is the right thing to do, although in fact it may not be the right thing to do in some instances. Self-deception of this kind allows legal rules to perform the morally valuable functions of settling controversy and supporting coordination. It is nevertheless disturbing: any departure from reasoned decision-making is a cause for regret, even if it is justifiable on reasoned grounds.

Thus, unless we are willing to accept the unguided reasoning of judges as our only source of legal judgments, there will always be irrationality at work in law. Rules at least combine irrationality with significant benefits, such as settlement of controversy and coordination of action and decision-making, in fairly definite ways.

The second, related problem affecting conventional legal decision­making is a practical problem. Because the customary methods of argu­ment and decision-making we have discussed involve self-deception and irrationality of various kinds but lack the relatively clear benefits of rules, they may not hold up over time. If we are correct that these practices are not rationally defensible on their own terms and yield, at best, only marginal indirect benefits, lawyers and judges may come to understand this and drift away from them over time. Analogical decision-making appears at present to be firmly established: our criti­cal analysis of analogical methods is not likely to prevail in the face of pervasive legal training and professional acceptance. Over time, how­ever, the business and technology of law may force changes. Careful factual comparisons may give way to quicker word-based searches for announced rules or rationales or even to self-executing private transactions enforced by electronic means. Judicial diffidence toward rule-making may also fade over time, as judges come to accept that they possess the full complement of rule-making power. And there are indications that courts have become more comfortable with direct overruling of precedent rules, and so may gradually lose their interest in searching past cases for distinguishing facts.

For these various reasons, common law methodologies stand on mov­able ground. We believe that a model of judicial decision-making that combines unrestricted moral, practical, and empirical reasoning with enforcement of authoritative judicial rules is the only logically defens­ible model of the common law. It is also the only model that allows law to settle controversy effectively and support interaction among private actors or between private actors and the state.

In some circumstances, conventional legal practices and attitudes that are not consistent with the rule model of decision-making may help to prevent or minimize errors in judicial rule-making that result from the judge's focus on a particular set of facts. In other circumstances, con­ventional practices and attitudes may help judges follow rules when the rules prescribe outcomes that seem wrong, and may in fact be wrong, in particular cases. In each case, the practice or attitude in question, although logically indefensible, may assist in sound decision­making. In this chapter, we have described this dilemma but have not attempted to resolve it. Perfect rationality is not a possibility in law or life (see Schauer 1991a).