Law Logic
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Abstract
W DOT rHAT do we mean when we say that legal decisions are based upon facts or rules? We are tempted to say that the meaning is that the decisions are inductive consequences of facts or deductive consequences of rules. The former model seems at home in criminal law, the latter in civil law. The judge or jury examines evidence and hears testimony (the defendant was there at 8:00 P.M., he had expressed an intention to kill, etc.) and finally declares the man guilty of the act on the basis of the evidence and testimony. What better example could we have of inductive justification? Or, in civil law, the judge knows that employers have not been held liable for injuries caused by one fellow servant to another, regards the case before him as covered by this precedent, and refuses to award damages to the plaintiff. How very like the deductive moves of the standard syllogism. But this picture achieves simplicity at the price of distortion. For the verdict "He is guilty," even if arrived at after evidence and testimony, is not an inductive consequence of that evidence and testimony. Nor is the judgment against the plaintiff a deductive consequence of fellow-servant precedents. For both legal decisions are, qua legal decisions, pronouncements or performances.1 They are not, for example, descriptions. Though it is no doubt true that, for any efficacious legal order, legal decisions will frequently do something that might be described as "corresponding with the facts," it would be a mistake to think that the outcome of trial or litigation is a description of these facts. "Jones really did X" can be an inductive consequence of evidence, whereas "Jones is guilty of X" is noteven though, for most legal systems, the latter and the former are often simultaneously true. When the umpire in baseball says, "You're out!" he is not describing anything that is going on in the field. Nor is he misdescribing anything. He is declaring, and not describing at all. This is true even granting the point that baseball could not persist unless there were a great coincidence between umpires' declarations and descriptions true of play on the field. Here, however, arises another great temptation: If the connection between evidence and verdicts, precedents and decisions, is neither inductive nor deductive, then perhaps it represents a kind of "third logic" which is peculiar to the law or, perhaps, to games and institutions in general. For, after all, the connection between decisions and true descriptions cannot be merely a fortuitous coincidence. Judges, like umpires, appeal to facts, appeal to rules, as