JUDGING CRIMES

The law attracts so many talented, intelligent people, who devote so much ingenuity to their profession, that it's sometimes hard to remember the extreme crudity of the intellectual tools we work with.  I mean "crude" in a comparative way: a chainsaw is crude compared to a jeweler's saw, but that doesn't make the chainsaw a bad thing, as long as you don't use it on jewelry.  

Or, to draw an analogy from one of the other traditional learned professions, a doctor who diagnoses strep throat by smell, or shingles by sight, or a hernia by the way they diagnose hernias, is using extremely crude diagnostic tools, ones that almost certainly go all the way back to Galen  and before.

Legal reasoning is crude in this comparative sense.  Lawyers are the last Scholastics.  We're trained to accept "that the proper method of knowing involve[s] syllogistic demonstration – deduction from universal first principles or premises taken to have self-evidential status."   That's a quote from David C. Lindberg's The Beginnings of Western Science: The European Scientific Tradition in Philosophical, Religious, and Institutional Context, 600 B.C. to A.D. 1450, a book that explains everything you need to know about the origins of the intellectual techniques American law students spend three years mastering.  (See post 14.)

The sciences abandoned Scholastic techniques in the century following Francis Bacon.  One of the distempers of learning Bacon attacked was "contentious learning ('vain altercations')", by which he "was referring mainly to Aristotelian philosophy and theology and especially to the Scholastic tradition of logical hair-splitting and metaphysical quibbling."  "Contentious learning" is a pretty good way to sum up most legal scholarship and most "scholarly" (i.e., heavily freighted with citations) judicial opinions.

In Bacon's own words, the Scholastics "rather crushed the sciences with a multitude of treatises, than increased their weight."  (New Organon, Book One, 78.)  They pursued logical speculations to absurd lengths.  Out of "no great quantity of matter and infinite agitation of wit [they would] spin out unto those laborious webs of learning which are extant in their books." (Advancement of Learning, Book One, IV.5.)  They exemplified "the first distemper of learning, when men study words and not matter". (Advancement of Learning, Book One, IV.3).  And, my favorite:

Surely, like as many substances in nature which are solid do putrefy and corrupt into worms; so it is the property of good and sound knowledge to putrefy and dissolve into a number of subtle, idle, unwholesome, and, as I may term them, vermiculate questions, which have indeed a kind of quickness and life of spirit, but no soundness of matter or goodness of quality.  (Advancement of Learning, Book One, IV.5.)

Bacon was referring specifically to the belief, common until Pasteur's time, that worms spontaneously generated in decaying flesh.  (See Roy Porter, The Greatest Benefit to Mankind, pp. 428-30. ) 

The image exactly captures the way the law actually works in the United States: a principle, grand and noble in itself, is divided into endless subsidiary questions the way a body is turned into worms.  And each one of the worms is then treated as if it were the original body, so that, for instance, the difference between serving a search warrant now or ten seconds from now is the difference between having a fourth amendment and watching it evaporate.  (See post 124 and post 126 and post 128.)

American judges hold that when a person consents to a search by police, and the search uncovers evidence of wrongdoing, it's not enough for the prosecution to show the consent was given voluntarily.  There must also be independent proof that the consent was not coerced.  And these aren't the corrupt and incompetent judges I sometimes write about.  Perfectly intelligent, capable people are willing to accept  that a person's consent can be simultaneously voluntary and coerced, much as a mind as luminous as St. Thomas's could devote its days to wondering if two angels could be in the same place at one time. 

In the twenty-first century the signature form of American legal scholarship remains the treatise - the very blocks of dead weight under which the Scholastics crushed learning, in Bacon's magisterial sneer.   Legal treatises gather together what lawyers, with the authentic Scholastic note of reverence, call the "authorities" on a given subject.  Summaries of the authorities and long quotations from them are strung together with transitional passages of commentary and the occasional editorial comment. 

St. Thomas or John Duns Scotus or William of Ockham could walk into any law library today, take from the shelf any volume of LaFave on Search and Seizure (4,200-plus pages for the 54-word fourth amendment) or Wright and Miller on Federal Practice and Procedure (64 volumes and counting), and instantly recognize the scholarly method.