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Source link: http://archive.mises.org/9996/circular-reasoning-in-the-law/

Circular Reasoning in the Law

May 21, 2009 by

Ever since I was in law school I’ve been irritated at various circular arguments used to justify various laws, policies, or legal rulings. A good example is the notion of “detrimental reliance,” which is sometimes used to justify enforcing a contract. The question arises: why should a promise be enforceable? The answer? Because the promisee reasonably relied on it to his detriment, so that if the promise is not enforced, then the promisee would suffer damage. Of course the obvious response is that the “reliance” is reasonable only if promises are legally binding in the first place–hence the circularity. (For more on this, see La. Civ. Code Art. 1967; my Punishment and Proportionality: The Estoppel Approach, n. 14; Randy E. Barnett, A Consent Theory of Contract, pp. 274-76; and George Fletcher, Paradoxes in Legal Thought, p. 1269, and n. 30. For an example of a libertarian who makes this mistake, see my review (p. 140) of Patrick Burke’s, No Harm: Ethical Principles for a Free Market.) The right approach is the libertarian Evers-Rothbardian “title transfer” theory of contracts, rather than the “enforceable promises view” (see my A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability).

In law school and grad school I used to make notes in the margins of cases and books when I encountered these, but unfortunately have lost them. I had a dozen or two. I remember there were some in International Business Transactions. Another had to do with the patent law concept of “file wrapper estopppel” (don’t ask). I remember some in the UCC courses, some in bankruptcy, lots in torts. And many in constitutional law–e.g., regarding the 4th amendment right against search and seizure, if I recall, the Supreme Court’s jurisprudence, in order to determine whether someone’s “privacy” is breached, asks whether someone had a “legitimate expectation” of privacy. Circular! In modern-day FISA America, citizens do not really have such an expectation, because they know the nature of their government. Why should the way things are be some sort of indicia for the way the Constitution commands they should be? (If any law students or lawyers or others remember or come across other examples, please post them in the comments.)

It’s unrealistic to expect mainstream legal statist-positivists to adopt libertarian reasoning, but I would prefer if they would simply honestly say it’s just an arbitrary decree or decision, rather than pretend they have a real justification for the policy or decision.

Update: another example, as noted here:

Justice Anthony Kennedy put his finger on a deeper problem with this argument yesterday when he called the government’s reasoning “circular”: We license broadcasters so we can regulate them, and we can regulate them because we license them. Instead of treating broadcasting rights as transferable property, the government chooses to give broadcasters revocable licenses and then cites that decision as grounds for further meddling. By similar logic, the government could nationalize the paper industry or the silicon chip industry, then use the resulting power to dictate the content of newspapers or websites.

{ 13 comments }

Ohhh Henry May 21, 2009 at 4:18 pm

I think that the attempt to use a state apparatus to codify and enforce laws must inevitably produce bad laws. Good laws are commonsensical and do not need a complicated way of explaining them. Natural law in other words. Because natural laws are commonsense it is easy for people to avoid breaking these laws, and a large and expensive apparatus for producing “justice” is unnecessary.

If there is to be any room for a large and intrusive state to exist, it must find something to do other than logical, rational, commonsense things. Those things are already being done and nobody needs a state to do commonsense things for them. The state must therefore stake out and own the field of irrational and stupid laws. The bigger the state that is desired, the more new laws they need, and the more they must deviate from what is simple and rational.

I believe that this explains the many problems with the law, in its state-produced form. The state writes bad laws not through any accidental circumstances or due to lack of diligence by legislators, but because it MUST write bad laws in order to exist.

Gil May 21, 2009 at 7:12 pm

“Good laws are commonsensical and do not need a complicated way of explaining them.” – O. Henry.

Further specious explanation for any and all laws? Laws are simply restrictions of one person against others. The only presumed legitimate way a person can come up with laws is due to the fact they actually own the property that they are trying to restrict others with.

Karl Fielding May 21, 2009 at 7:51 pm

Circular reasoning? Try to put a subjectivist spin on the definition of “fair market value” in a contracts class. I think I got an “A” in blank stares.

Ben R. May 21, 2009 at 9:01 pm

I just finished up 1L and the first example that I thought of was referencing “notions of fair play and substantial justice” to determine if a court has jurisdiction. I found this question begging-standard particularly disappointing in something as important as jurisdiction.

Magnus May 21, 2009 at 9:38 pm

Assumption of risk (although it doesn’t much exist any more). It was basically defined as “any tort-type loss for which the law will not provide compensation.”

Another of my favorites was deciding a Constitutional issue by purportedly using a “balancing test.” Balancing what exactly? It’s not a test, and not a rule at all, if you simply say that you are “weighing” the policy considerations. Maybe that “weighing” is a common political means of arriving at a rule, but a “balancing test” is not actually a rule.

Here’s one that you should like, Stephen — “fair use.” The rules of copyright, such as they are, determine what’s fair.

In 14th Amendment cases, one of the major factors is whether some legislation serves a “legitimate governmental interest.” Of course, what defines the parameters of supposedly legitimate governmental interests in the first place are those very rules about the limits of governmental power.

Another absurdity, although not circular per se, are the decisions that say that trial judges’ rulings on certain issues will only be reversed if they constitute an “abuse of discretion,” but then go on to say that “any decision other than exactly the one we demand will be treated as an abuse of discretion.” It’s like saying you can get a car in any color so long as it’s black.

The law is bullshit. Practicing in government courts is an exercise in bullshit.

Walt D. May 21, 2009 at 10:07 pm

The great logician Kurt Godel, claimed to his friend Einstein, on the way to his citizenship interview, that the US Constitution had a logical flaw that would allow, by self-amendment, a few thousand federal and state politicians to institute a dictatorship.
Note that this totally different than the SCOTUS using twisted logic to arrive at an arbitrary decision. What Godel was alluding to was based on a strict adherence to Constitution based on standard everyday usage of the English language, The following link explains Godel’s reasoning.
http://www.earlham.edu/~peters/writing/psa/sec01.htm#A

P.M.Lawrence May 22, 2009 at 3:51 am

SK, that’s no more circular reasoning than a properly constructed recursive definition is a circular definition. You have simply omitted the stuff that would clear the difficulty up.

Sasha Radeta May 22, 2009 at 6:55 am

I think all libertarians agree that mere promises are not enforceable. Unlike contract violation, breaking a promise does not imply any unlawful usurption of property that legally belongs to someone else (contrats are in fact exchanges of property titles). However, some libertarians miss the basic meaning of contracts (free market exchanges) — and that is far more serious issue, since enforceable contracts are synonymous to free market transactions.

Often, you have libertarians who think that by obtaining limited access to someone’s property (like works of authorship), you magically get the property tile over that good in its enirety. Strangely, copyright violators claim that contracts are not absolute – they just need “terms of use” agreement to gain access to another person’s property… and then they engage in a limitless use, regardless of rightful owner’s disapproval.

It’s really not a secret that state is really guided by arbitrary decree, rather than any real justification for the policy or decision. Unfortunatelly, the same often goes for many of those who oppose the state, either from right or left.

Magnus May 22, 2009 at 9:33 am

SK, that’s no more circular reasoning than a properly constructed recursive definition is a circular definition.

I don’t know that there is such a thing as a “properly constructed” recursive definition when we’re talking about a substantive rule of decision.

The whole point of substantive legal rules is that they define and categorize facts (or sets of facts) into binary terms. They sort the wide world of facts and specific instances, which is infinitely variable, into one of two categories — right/wrong, permissible/impermissible, legal/illegal, valid/invalid.

A recursive definition fails to accomplish this task.

In fact, pretending that such recursive definitions are, in fact, substantive rules of decision, is a sneaky and underhanded way of making it look like the court is applying substantive rules of decision, when in reality they are just making policy declarations.

It’s rather like saying “we can’t define pornography, but we know it when we see it.” That’s not a substantive rule. It’s a way of appointing yourself as the sole arbiter with discretionary power.

Another example is that the Court has decreed that abortion restrictions are allowed unless they place an “undue burden” on the right to have an abortion. What is “undue,” you may ask? Well, they don’t say.

They don’t say because by NOT SAYING, they elevate themselves to the position of being the arbiter. And, luckily enough, they are the arbiter in a legal realm where there are no substantive rules of decision telling them what might be considered “undue.”

P.M.Lawrence May 22, 2009 at 10:05 am

Sasha Radeta wrote “I think all libertarians agree that mere promises are not enforceable”.

Actually, anybody who uses feudal law as a framework does think that. It is quite possible for a Libertarian to do that. In feudal law, it is not so much contracts as promises that are binding. In particular, where a contract (in law) does not require one party to fulfil it if the other party does not carry out his end of the contract, the feudal equivalent is the exchange of promises – and in general each promise is binding regardless of whether the other is kept (although, of course, it would often happen that each promise was itself constructed to be contingent on the other promise being fulfilled).

Magnus wrote “The whole point of substantive legal rules is that they define and categorize facts (or sets of facts) into binary terms. They sort the wide world of facts and specific instances, which is infinitely variable, into one of two categories — right/wrong, permissible/impermissible, legal/illegal, valid/invalid. A recursive definition fails to accomplish this task.”

Stipulating all that just for the sake of argument, even though that has not been established, a sound recursion can indeed do all that. All it needs is two things, that the recursion always rests on a prior case that is in some sense “smaller”, and that this always leads the recursion to terminate on some or other separately established base case – i.e. that it prevents both circularity and infinite regress. Of course, it is quite possible to get that wrong and get – for instance – circularity, but that is not the same thing as there being no sound recursion. After all, recursion is used to great effect in a number of areas, e.g. in computer science and the foundations of arithmetic (see Peano’s Axioms for some insight into this).

Magnus May 22, 2009 at 10:40 am

and that this always leads the recursion to terminate on some or other separately established base case

That base case would, in fact, be the substantive rule of decision, and courts could openly identify them as such, if they wanted to.

But by purporting to rely on a recursively-defined, higher-order legal term, and calling it a “test” or a set of “elements” or some kind of substantive legal principle, a court does not have to actually rely on a rule of law at all to make a ruling.

This is no accident. In the absence of genuine rules, courts get discretionary power. Recursive (and circular) legal terms are (falsely) labeled as rules of decision for an institutional, systemic reason — to hide the true rule (i..e., the actual basis for the decision) behind a huge wall of pseudo-rules and pseudo-analysis, thereby giving the legal opinion the appearance of legitimacy and sound reasoning.

When you get down to the bottom of one of these recursive/circular analyses, what you find, as an actual basis for the decision, is one founded on cultural bias, prejudices, policy preferences, and your garden variety lust for expanded judicial power.

These recursive/circular legal concepts are a way of avoiding disclosure of the true basis of one’s decision.

Here’s another one — a contract can be voided if it “shocks the conscience.” This term is also used, most recently, in the debate over permissible forms of torture (i.e., enhanced interrogations). “Shocking the conscience” is not an actual rule of law, nor a legitimate element of one. It’s (obviously) a subjective criterion. The rules as to what activity constitutes a conscience-shocking practice are conveniently missing.

P.M.Lawrence May 22, 2009 at 9:50 pm

“That base case would, in fact, be the substantive rule of decision, and courts could openly identify them as such, if they wanted to”.

Not in the example SK gave. All that requires is a base case of accepted usage emerging at some point in the past for whatever reason, no matter how unsound or even lacking the law behind it. For instance, it might be a matter involving which car had the right of way when two cars collided because one was driving on the left and the other on the right.

Said Benrida December 14, 2010 at 1:16 pm

Who is the origin of god? or what is the origin of god itself my dear? Does god existed by itself? then god is the universe itself!

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