JUDGING CRIMES

Legal reasoning is an extremely crude technique for analyzing reality.  That's the best thing about it.  That's what makes it so effective as a device for getting things from people.  The last thing you want in any tool is excessive refinement. 

That's why paperbacks won't be replaced by e-books until you can toss an e-book in an outside pocket of your backpack and take it camping, or leave it in an airport when you're through with it.   That's  the great strength of Mikhail Timofeevich Kalashnikov's most successful invention  - it's so crude that an uneducated farmer's son living in a mental Dark Ages can maintain it in murderous order.   Tapping a patient's knee with a rubber mallet is a crude way of measuring reflexes, and tasting tea is an extremely crude way of evaluating its quality, but neither technique can be improved upon.

So the crudeness of legal reasoning isn't necessarily a bad thing.   In many ways it's a highly-desirable quality, just as simplicity is a quality prized in shovels.  It's only when one attempts to use a shovel to prepare specimens for microscopic examination that problems arise. 

Here's a list of the four crudities that make the mental skills of lawyers and judges so extremely useful for shoveling:

1.  Almost all legal reasoning is based on categorization.  The lawyer or judge develops categories a priori and then demands that reality fit into them.    Thus Justice Scalia has recently informed us that all out-of-court statements by anybody must be either testimonial or non-testimonial, and whether a statement is testimonial depends on whether it was made during an emergency or during a non-emergency, and whether being frightened and in acute pain qualifies an emergency depends on whether the person who inflicted the pain is still on the premises or outside.   (See post 127.)   Reality is not permitted to be any more complex or subtle than the mind of the judge slotting its shards into categories.

2.  Almost all legal arguments are based on syllogistic reasoning, or sophistical pseudo-syllogistic reasoning.  (See post 129.)  The syllogism is the shank of formal logic, a device anyone can make but, when it comes to the nitty-gritty, often quite effective.   The syllogism has room for only three ideas in its head at any one time.  It's a  picture composed of primary-color Benday dots.   It's a song with only three chords.

3.  Almost all legal arguments are arguments from authority.  Inside the legal pyramid, it's enough that the Supreme Court said so - there's literally no more powerful argument.  But the argument isn't conclusive because it's true, or even logical, but only because of its source.  In logical terms, arguments from authority are worthless on their own, but in the real world nothing ends an argument more effectively than power, as the Heguenots discovered.  That's part of what Justice Jackson meant when he said of the Supreme Court: "We are not final because we are infallible, but we are infallible only because we are final."

4.  Lawyers' arguments are based on backward syllogisms.  The lawyer begins with the conclusion - what the client wants.  The middle premise is comprised of the facts of the case, or rather of the evidence admissible at trial.  The major premise, the first element of the syllogism, is the goal of legal research.  When a lawyer conducts research, what she's trying to do is come up with some statement of a legal principle that can be slotted in at the top of the syllogism to justify the bottom. 

Future posts will show the four crudities in action.