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Logic and Legal Reasoning

Prepared by Dr. Hamner Hill for PL 120, Symbolic Logic I

Both logicians and lawyers are concerned with the concept of validity, but for somewhat
different reasons. While logicians are concerned with the validity of specific arguments, lawyers
are concerned with the validity (the binding quality) of specific legal rules (law, norms, the terms
are interchangeable). Accordingly, some theorists have raised the question of whether the
logicians concept of validity can usefully be applied to law. Is 'legal validity' some sort of
species of the genus 'logical validity'? The materials which follow examine this question, first
looking closely at an affirmative answer and then examining several objections to the affirmative
answer.
Logicians are concerned with the structure of the arguments presented in legal reasoning
and the criteria for distinguishing good arguments from weak ones. therefore, evaluating an
argument in this context differs little from evaluating an argument for a scientific hypothesis or
for a conclusion in any other area of human activity. In each instance, the logician appraises the
logical strength of the reasoning involved and considers neither the subject matter of particular
arguments nor the psychological processes of thought.
But legal reasoning cannot be abstracted from the operations of the system in which it
occurs. Legal procedures established for the resolution of disputes greatly influence the
arguments judges make to explain and justify their decisions. Thus, the study of legal reasoning
is, at the same time, an analysis of practical reasoning--a study of the way logical principles and
methods have been adapted to meet the requirements of problem solving imposed upon the
courts. To study the use of logic in law is to study, first and foremost, how judges justify the
choices they must make between alternative solutions to problems involving rules.

Sources of law: Rules and Quantified Conditionals

Legal rules (laws) serve as instructions to be used by judges in deciding cases. Rules tell
judges how, in a general way, certain types of cases are to be resolved. There are four basic
sources of legal rules:

1. Articles and clauses of state constitutions and the United States Constitution
2. Statutes or enactments of legislative bodies
3. The common law
4. Regulations of administrative bodies such as the Internal Revenue Service

The common law consists of a large body of rules that are applied in the courts but that
have never been enacted as regulations, statutes, or ordinances by administrative or legislative
bodies. Its roots go back hundreds of years to customs that the royal courts of England adopted
and attempted to apply uniformly, thereby making them common to all the kind's land. Today,
the common law provides judges with a great number of precedents--drawn from thousands of
reported cases--that can be used to solve problems in the absence of formal rules. The common
law is divided into branches concerning such areas of dispute as property, contracts, and torts.
Statutes, ordinances, and administrative regulations result from legislative efforts to
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address public problems, set priorities, and make public policy. They are the means by which
legislators make their decisions legally binding. Such enactments instruct the public to cope
with a problem in a certain way--for instance, by paying taxes, registering for the draft, and
operating automobiles in a reasonable and prudent manner. Someone who does not comply may
be prosecuted by the government or sued by individuals seeking compensation for losses they
suffered as a result of the noncompliance. Statutes then, like all other legal rules, serve as
instructions to judges to settle the conflict in one way rather than another.
Constitutional provisions determine criteria by which the validity of other rules can be
judged. Constitutional provisions grant powers to state and federal governments, deny then
certain powers, assign rights to citizens as against governmental units. Any attempt at, say,
legislation that runs afoul of a constitutional provision is an unconstitutional act and, therefore,
non-valid in the legal sense.
One interesting feature of legal rules, whatever their source, is that they appear to have to
form of an A-type proposition, that is, they are universally quantified conditionals. A law
prohibiting murder says, in effect, that anyone who commits murder shall be punished in a
certain manner. That a strictly logical reconstruction (interpretation or translation) of such a law
can be provided is obvious. And, according to some philosophers of law, standard logical
operations can be used in order to determine whether certain results (legal decisions) follow
logically from the rules.

Logic and Legal Reasoning--The Question of Validity

Given the apparent logical form of legal rules, some theorists has suggested that formal
logic can be applied directly to legal reasoning, so much so that legal validity is a proper subset
of logical validity. A legal decision (which generates what we might call a particular or
individual norm) is valid, so this view holds, if, but only if, the individual norm is the conclusion
of a sound deductive argument. To determine whether this is the case, the judge should
instantiate the general rule and then see whether the facts of the case constitute an instance of the
antecedent of the conditional. If so, the conclusion follows by modus ponens. If not, then the
putative individual norm is, in fact, non-valid. This is an appealing theory, and it satisfies many
of our views about the proper limits on governmental authority (this is a government of laws, not
of men; we live by the rule of law; etc.). Whether the theory can withstand scrutiny, however, is
an open question. These materials will examine that question.

Mechanical Jurisprudence

There is a theory of law known as mechanical jurisprudence which holds that legal decisions
are the result of a strict application of the rules of symbolic logic to sets of premises taken both
from the law and from the particular facts of a case. The position of the mechanical jurist is not
without strong allure. Our common notions of what it is that a judge should do (i.e., apply the
law, as handed down by the legislature, to the facts of a case and thereby deduce a verdict) fit
comfortably with the mechanical jurist's view of legal reasoning. Legal rules, after all,
frequently have the form of universally quantified A-type propositions (e.g., "Any person who
uses a gun in the commission of a felony shall be sentenced to not less than three but not more
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than ten years in the state penitentiary.") to which rules like modus ponens should be strictly
applied. Despite the allure of mechanical jurisprudence, it (like its contemporary counterpart in
constitutional theory--strict construction or original intent) is a deeply flawed theory. First,
mechanical jurisprudence is not descriptively accurate of a good part of actual judicial behavior.
Thus the theory does not have the status of a scientific law. Rather the thesis is normative, that
is, it is a claim about how judges should do their job rather than being one about how judges in
fact do their jobs. But there is good reason to believe mechanical jurisprudence is inadequate as
a normative theory of judicial behavior. And if that is the case, then the theory, despite its allure,
should be rejected.
The following materials will first present the position of the mechanical jurist and then
consider reasons why that view should be rejected.

A. Mechanical Jurisprudence: Statements of the Position

Sir William Blackstone, Commentaries on the Laws of England. ed. Wm. Lewis
(1897) vol. 3, page 396.

The judgment, though pronounced or awarded by the judges, is not their determination or
sentence, but the determination and sentence of the law. It is the conclusion that naturally and
regularly follows from the premises of law and fact, which stand thus: against him, who hath
rode over my corn, I may recover damages by law: but A. hath rode over my corn; therefore I
shall recover damages against A. If the major proposition be denied, this is a demurrer in law: if
the minor, it is then an issue of fact: but if both be confessed (or determined) to be right, the
conclusion or judgment of the court cannot but follow. Which judgment or conclusion depends
not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of
justice . . .

Baron de Montesquieu, The Spirit of the Laws, trans. Th. Nugent 91949), BK. VI,
ch. 3 and Bk. XI, ch. 6. First published (in French) in 1748.

In despotic governments there are no laws; the judge himself is his own rule. There are
laws in monarchies; and where these are explicit, the judge conforms to them; where they are
otherwise, he endeavors to investigate their spirit. In republics, the very nature of the
constitution requires the judges to follow the letter of the law; otherwise the law might be
explained to the prejudice of every citizen, in cases where their honor, property, or life is
concerned.
At Rome the judges had no more to do than to declare that the persons accused were
guilty of a particular crime, and then the punishment was found in the laws, as may be seen in
divers laws still extant. In England the jury gave their verdict whether the fact brought under
their cognizance be proved or not, if it be proved, the judge pronounces the punishment inflicted
by the law, and for this he needs only to open his eyes.

Roscoe Pound, "Courts and Legislation," in Science of Legal Method, (1921),

202, at 206.
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A German writer has put the received theory thus: The court is an automaton, a sort of
judicial slot machine. The necessary machinery has been provided in advance by legislation or
by received legal principles, and one has to put in the facts above and draw out the decision
below. True, he says, the facts do not always fit the machinery, and hence we may have to
thump and joggle the machinery a bit in order to get anything out. But even in extreme cases of
this departure from the purely automatic, the decision is attributed not at all to the thumping and
joggling process but solely to the machine.*
*Kantorowicz, "Rechtswissenschaft und Soziologie," 5.

B. Judicial Decisions as Deductive Arguments

Among these brief excerpts on mechanical jurisprudence, perhaps the first, that from
Blackstone, is the clearest. He gives us what appears to be a straight-forward example of a
deductive argument. Beginning with a proposition of law and another of fact, if we understand
the first of them as being hypothetical in form, and the second as in effect affirming the
antecedent of an instantiated version of the first, then, Blackstone says, "the conclusion or
judgment of the court cannot but follow." The force of "cannot" leaves little doubt that the link
between premises and conclusion is a deductive one. For we know, in the case of a valid
deductive argument, that to conjoin the premises with the denial of the conclusion is to generate
a self-contradiction. In other words, the conclusion "cannot but follow" on pain of a self-
contradiction.
Given these statements of mechanical jurisprudence, can we extrapolate from
them to see how the mechanical jurist might address modern themes in the law and legal
philosophy--in particular, the nature of adjudication and the doctrine of legal validity?
What, first of all, does the mechanical jurist have to say on the nature of adjudication?
His answer, already adumbrated by Blackstone, is straightforward. Adjudication is a deductive
process, and individual legal decisions are deductive arguments. Consider the following
example, which is drawn from a criminal proceeding:

1. [Legal Authority] "A person is guilty of [felony] murder when... Acting either alone
or with one or more other persons, he commits or attempts to commit robbery, burglary,
kidnapping, arson, rape in the first degree, sodomy in the first degree, sexual abuse in the
first degree, escape in the first degree, or escape in the second degree, and, in the course
of and in furtherance of such crime or of immediate flight therefrom, he or another
participant, if there be any, causes the death of a person other than one of the participants,
. . ." [New York Penal Law, #125.25 Murder]

2. [Statement of Facts, as established by the jury] Defendant John Doe, acting alone in
the commission of a burglary at 123 Spring St., caused the death of Richard Roe, a
pedestrian, whom Doe struck violently with a piece of pipe while making his exit from
the residence on Spring St.
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3. [Judicial Holding] John Doe is guilty of murder.

The mechanical jurist contends that 1. and 2. are premises in a deductive argument, and that 3. is
the conclusion to be derived therefrom. The example can be rewritten in syllogistic logic. That
is, if premise 1. is understood as a universal A-type sentence (with its antecedent beginning at
"when" in the English-language sentence), and premise 2. is understood as a singular sentence,
then we have an argument in syllogistic logic that depicts the deductive character of the criminal
proceeding. Or so the mechanical jurist would have us believe. Specifically,

All G are P.
Some C (Doe to be specific) are G.
So, some C (d again) are P.

G=Persons guilty of felony murder; P= Persons punishable; C=Citizens; d=Doe, a citizen

In other words, the argument expressed here is a formal representation of what the mechanical
jurist sometimes speaks of as a "syllogism." Line 3. (corresponding to line 3. in the English-
language example) is formally derived from lines 1. and 2. by applying rules of direct inference.
And what does the mechanical jurist have to say on legal validity? His doctrine of legal
validity is neat and tidy. A judicial holding is legally valid if, and only if, its derivation from the
premises is valid (logically valid!) and these premises are true. In short, "Gd" (above) represents
a legally valid judicial holding if, and only if, the deduction in question (viz. "1. and 2., therefore
3.") is sound.
On the face of it, it appears that the mechanical jurist has a solid position. Mechanical
jurisprudence appears accurately to describe what courts in fact do and it surely describes what
they ought to do.
What follows is an actual decision in which the judge, Judge McSherry, behaves exactly
as the mechanical jurist would have him behave--he applies the law to the case is a strict manner.
After having read the decision, rethink the desirability of the mechanical jurist's view of the
world.

Illustrative Case
Gluck v. Baltimore
81 Md. 315, 32 A. 515 (1895)

McSherry, J. This is a proceeding by the mayor and city council of Baltimore to condemn under
the right of eminent domain part of a lot of ground and part of the building thereon for the
widening of Gay street. The reversionary interest in the property belongs to the estate of Samuel
Hindes, and the leasehold interest is owned by the appellant, Gluck, under a least executed in
1885, and which expires in 1905. Gluck, being dissatisfied with the award of damages made to
him, appealed from the return and estimate of the commissioners for opening streets to the
Baltimore city court, where a trial by jury was had. At the close of the evidence both the city and
Gluck asked the court to instruct the jury as to the measure of damages applicable to the facts
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before them. The prayers presented by the city were granted, while those presented by Gluck
were rejected, and from these rulings this appeal was taken . . . What, then, is the measure or the
standard by which the value of so much of the appellant's leasehold interest as is needed for
widening Gay Street is to be ascertained? Primarily, it would be the fair market value of his
interest in that portion which would remain after the widening of the street has been completed . .
. This, as a general rule, is, a priori, correct . . . The specific inquiry, then, is, when part of the
demised premises is taken, what circumstances affect the relative market values fixed in the rule
above quoted as the standards of comparison, if the tenant is bound by an unconditional covenant
to pay rent, and the landlord is under no covenant to repair the buildings injured by the
appropriation for the public use?

It has . . . been contended that, if the tenant should be allowed to recover for the full value
of the leasehold interest, and the landlord should be required to rely upon the personal obligation
of the tenant for the payment of rent, a rule of this character would or might in many instances
result in great loss to the landlord. As said by Rolfe, B., in Winterbottom v. Wright, "Hard
cases, it has been frequently observed, are apt to introduce bad law." And in Abbott v. Gatch,
this court declined to permit considerations of great hardship to influence the rigid enforcement
of established legal principles. Obviously a principle, if sound, ought to be applied wherever it
logically leads, without reference to ulterior results. That it may, in consequence, operate in
some instances with apparent, or even with real, harshness and severity, does not indicate that it
is inherently erroneous. Its consequences in special cases can never impeach its accuracy.

Is McSherry correct? Is it the case that the results that follow from the rigid application
of a rule can never count as evidence that something is wrong with the rule? The legal realists
firmly believe that the consequences of a rule can and should impeach the legitimacy (validity)
of the rule.

The view of the legal realists

On first impression, it seems that judges must offer demonstrative arguments for their
decisions. They do not say, "On the basis of the evidence, the defendant was probably acting
legally," nor that "the defendant's claims is more probable than the plaintiffs's claim." Rather,
because judges are required to render verdicts, their decisions must be final and decisive. A
formal, deductive mode of reasoning therefore seems appropriate to achieve the level of certainty
and finality judicial decision making requires.
There is story about three baseball umpires, however, that casts some doubt as to the
viability of the mechanical jurists model of decision making. The umpires were discussing how
they go about calling balls and strikes. The fist umpire proudly announced "I call 'em as I see
'em!" "Huh," the second retorted, "I call 'em as they are!" The third umpire cut off the
discussion by announcing "They ain't nothin' 'til I call 'em." A group of legal theorists, known as
legal realists, believe that the behavior of judges more closely follows that of the third umpire
than either of the others.
According to the legal realists, however, the appearance that judicial reasoning is
primarily deductive is deceptive. Writing in The Common Law, Justice Oliver Wendell Holmes
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said:

The life of the law has not been logic: it has been experience. The
felt necessities of the time, the prevalent moral and political
theories, intuitions of public policy, avowed or unconscious, even
the prejudices which judges share with their fellow men, have had
a good deal more to do than the syllogism in determining the rules
by which we should be governed.

The view that the judicial decision process is not primarily logical was shared by Justice
Jerome Frank. In his book Law and the Modern Mind, Frank observed that "in theory, the judge
begins with some rule or principle of law as his premise, applies the premise to the facts, and
thus arrives at his decision." But this theory, Frank contended, does not accord with the facts:
"*since the judge is a human being and since no human being in the normal thinking process
arrives at decisions (except in dealing with a limited number of simple situations) by the route of
any such syllogistic reasoning, it is fair to assume that the judges, merely by putting on the
judicial ermine, will not acquire so artificial a method of reasoning. Judicial judgments, like
other judgments, doubtless, in most cases, are worked out backward from conclusions tentatively
formulated." In other words, Frank believed that the judge usually begins with what seems like
the proper conclusion and then attempts to explain this result by showing how it is necessarily
derived from the relevant legal rule. But the justification is a mere rationalization--a self-
satisfying but incorrect explanation. The decision process employed in any particular case can
be correctly described only be reference to what Justice Frank described as the "peculiarly
individual traits of the persons whose inferences and opinions are to be explained." The
personality of the judge is, consequently, the key to understanding the way in which cases have
been decided.
Other legal realists assert that a hunch, or intuition, regarding what is the just solution to a
particular case is the crucial factor in the decision process, or even that the judge's emotional
reaction to the facts of the case determines the outcome. But all agree that irrational factors are
the primary influences on the judge and that the judge only makes it appear that the decision was
dictated by prior rules applied in accordance with the canons of formal logic.
Judges must say what the law "is" to resolve the disputes before them. A judge cannot
hear a case and then refuse to render a decision because the legal answer cannot be determined.
Nor can a judge say, "Maybe the law is X. Maybe the law is Y. I'll guess Y. You lose!"
Consequently, to render justice in our society, judges must often make certain that which is
inherently uncertain. They must sometimes state how the law applies to a case when, up until
the point of decision, it is unclear whether and how the law does apply. Therefore, the legal
realists contended it should not be surprising that judges cling to the illusion that their decisions
deductively follow from clear and settled rules of law.

The Structure of a Judicial Decision

According to one view of legal reasoning, there are four distinct steps that a judge must
go through in order to justify a given decision. Those steps are (1) Finding the facts; (2) Finding
the law, i.e., determining which legal rule or rules are applicable to the case; (3) Interpreting the
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law (deciding exactly what the rule means); and (4) Applying the law as interpreted to the facts
as found. While these four steps pose no obvious threat to the view of the mechanical jurists,
there is sufficient latitude in each step to create serious difficulties. The selections which follow
describe some of the difficulties involved in making and justifying a judicial decision.

Finding the Facts

One might think that finding the facts of a case (deciding what happened) is the most
straightforward part of a judicial decision. Such is not the case. There is a growing body of
psychological evidence that witness testimony is notoriously unreliable quite simply because
people tend to see what they expect to see in a given situation. That is, our expectations about
the world color our perceptions of the world. Even more serious, from a theoretical point of
view, is the claim that there are no neutral facts, that is, when a court "finds the facts of a case" it
is actually engaged in the normative construction of legal fact (making or creating facts as it
decides the case). Read the following excerpt from the U.S. Supreme Court and decide for
yourself whether this objection has much bite.

Illustrative Case
McBoyle v. United States
283 U.S. 25 (1931)

Mr. Justice Holmes delivered the opinion of the Court:

The petitioner was convicted of transporting from Ottawa, Illinois, to Guymon,
Oklahoma, an airplane that he knew to have been stolen, and was sentenced to serve three years'
imprisonment and to pay a fine of $2,000. The judgment was affirmed by the Circuit Court of
Appeals for the Tenth Circuit. A writ of certiorari was granted by this Court on the question
whether the National Motor Vehicle Theft Act applies to aircraft. That Act provides: "Sec. 2.
That when used in this Act: (a) The term 'motor vehicle' shall include an automobile, automobile
truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for
running on rails; . . . Sec. 3. That whoever shall transport or cause to be transported in interstate
or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished
by a fine of not more than $5,000, or by imprisonment of not more than five years, or both."
Section 2 defines the motor vehicle of which the transportation in interstate commerce is
punished in 3. The question is the meaning of the word 'vehicle' in the phrase "any other self-
propelled vehicle not designed for running on rails." No doubt etymologically it is possible to
use the word to signify a conveyance working on land, water or air, and sometimes legislation
extends the use in that direction, e.g., land and air, water being separately provided for in the
Tariff Act. But in everyday speech 'vehicle' calls up the picture of a thing moving on land. Thus
in Rev. Stats. 4, intended, the Government suggests, rather to enlarge than to restrict the
definition, vehicle includes every contrivance capable of being used "as a means of
transportation on land." And this is repeated, expressly excluding aircraft, in the Tariff Act. So
here, the phrase under discussion calls up the popular picture. For after including automobile
truck, automobile wagon and motor cycle, the words "any other self-propelled vehicle not
designed for running on rails" still indicate that a vehicle in the popular sense, that is a vehicle
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running on land, is the theme. It is a vehicle that runs, not something, not commonly called a
vehicle, that flies. Airplanes were well known in 1919, when this statute was passed; but it is
admitted that they were not mentioned in the reports or in the debates in Congress. It is
impossible to read words that so carefully enumerate the different forms of motor vehicles and
have no reference of any kind to aircraft, as including airplanes under a term that usage more and
more precisely confines to a different class. The counsel for the petitioner have shown that the
phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut,
Delaware, Ohio, Michigan and Missouri, not to mention the late Regulations of Traffic for the
District of Columbia, title 6, c. 9, 242, none of which can be supposed to leave the earth.
Although it is not likely that a criminal will carefully consider the text of the law before
he murders or steals, it is reasonable that a fair warning should be given to the world in language
that the common world will understand, of what the law intends to do if a certain line is passed.
To make the warning fair, so far as possible the line should be clear. When a rule of conduct is
laid down in words that evoke in the common mind only the picture of vehicles moving on land,
the statute should not be extended to aircraft, simply because it may seem to us that a similar
policy applies, or upon the speculation that, if the legislature had thought of it, very likely
broader words would have been used.

Finding the Principle (Rule) that Governs the Case

One might imagine that finding the rule that governs a case is a rather straightforward
matter--one goes to the law books and discovers which rule applies to the case. Such is not the
case. The task faced by Judge Robert Earl, when the case of Riggs v. Palmer reached the New
York Court of Appeals in 1889, illustrates judicial choice between competing principles.
In 1880, Francis B. Palmer made a will, leaving small legacies to his two daughters, Mrs.
Riggs and Mrs. Preston, and the bulk of his estate to his grandson, Elmer Palmer. But in 1882,
Francis Palmer married a second time, and he began to consider changing the provisions of his
will that were in Elmer's favor. The changes were never made, however, because Elmer
murdered his grandfather--a crime for which he was duly convicted and sentenced to prison.
Mrs. Riggs and Mrs. Preston sought to have the will, so far as it bequeathed property to Elmer,
annulled. Far from behind prison bars, Elmer claimed his property, and he won against his aunts'
challenge--at least in the lower court.
The only question for decision before the New York City Court of Appeals was whether
Elmer could have the property. What follows is an excerpt from the court's decision in this case.

Illustrative Cases
Riggs v. Palmer
115 N.Y. 506, 22 N.E. 188 (1889)

Judge Earl:

[Elmer Palmer says that the] will was made in due form, and has been admitted to
probate; and that therefore it must have effect according to the letter of the law. it is quire true
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that statutes regulating the making, proof, and effect of wills and the devolution of property, if
literally construed, and if their force and effect can in no way and under no circumstances be
controlled or modified, give this property to the murdered. The purpose of those statutes was to
enable testators to dispose of their estates to the objects of their bounty at death, and to carry into
effect their final wishes legally expressed; and in considering and giving effect to them this
purpose must be kept in view. It was the intention of the lawmakers that the donees in a will
should have the property given to them. But it never could have been their intention that a donee
who murdered the testator to make the will operative should have any benefit under it. If such a
case had been present to their minds, and it had been supposed necessary to make some
provision of law to meet it, it cannot be doubted that they would have provided for it. It is a
familiar canon of construction that a thing which is within the intention of the makers of a statute
is as much within the statute as if it were within the letter; and a thing which is within the letter
of the statute is not within the statute unless it be within the intention of the makers . . .
What could be more unreasonable than to suppose that it was the legislative intention in
the general laws passed for the orderly, peaceable, and just devolution of property that they
should have operation in favor of one who murdered his ancestor that he might speedily come
into the possession of his estate? Such an intention is inconceivable. We need not, therefore, be
much troubled by the general language contained in the laws. Besides, all laws, as well as all
contracts, may be controlled in their operation and effect by general, fundamental maxims of the
common law. No one shall be permitted to profit by his own fraud, or to take advantage of his
own wrong, or to found any claim upon his own iniquity, or to acquire property by his own
crime. These maxims are dictated by public policy, have their foundation in universal law
administered in all civilized countries, and have nowhere been superseded by statutes. They
were applied in the decision of the case of Insurance Co. v. Armstrong. There it was held that
the person who procured a policy upon the life of another, payable at his death, and then
murdered the assured to make the policy payable, could not recover thereon. Mr. Justice Field
writing the opinion, said: "Independently of any proof of the motives of Hunter in obtaining the
policy, and even assuming that they were just and proper, he forfeited all rights under it when, to
secure its immediate payment, he murdered the assured. It would be a reproach to the
jurisprudence of the country if one could recover insurance money payable on the death of a
party whose life he had feloniously taken. As well might he recover insurance money upon a
building that he had willfully fired." These maxims, without any statute giving them force or
operation, frequently control the effect and nullify the language of wills . . .
. . . The will spoke and became operative at the death of the testator. [Elmer Palmer]
caused that death, and thus by his crime made it speak and have operation. Shall it speak and
operate in his favor? If he had met the testator, and taken his property by force, he would have
had no title to it. Shall he acquire title by murdering him? If he had gone to the testator's house,
and by force compelled him, or by fraud of undue influence had induced him, to will him his
property, the law would not allow him to hold it. But can he give effect and operation to a will
by murder, and yet take the property? To answer these questions in the affirmative it seems to
me would be a reproach to the jurisprudence of our state, and an offense against public policy . . .
. . .My view of this case does not inflict upon Elmer any greater or other punishment for
his crime than the law specifies. It takes from him no property, but simply holds that he shall not
acquire property by his crime, and thus be rewarded for its commission.
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The next case you will read, Hynes v. New York Central Railroad, raises an even more
difficult problem for the mechanical jurist. In Hynes it appears that there are two rules for
deciding the case, either of which might apply, but which lead to different (and inconsistent)
results. The rub is that there is no logical way do decide between the rules. After reading Hynes,
ask yourself whether you would rather be judged by Judge Cardozo or Judge McSherry
(remember Gluck).

Hynes v. New York Cent. R. Co.

231 N.Y. 229, 131 N.E. 898 (1921)

Cardozo, J. On July 8, 1916, Harvey Hynes, a lad of 16, swam with two companions
from the Manhattan to the Bronx side of the Harlem River, or United States Ship Canal, a
navigable stream, Along the bronx side of the river was the right of way of the defendant, the
New York Central Railroad, which operated its trains at that point by high-tension wires, strung
on poles and cross-arms. Projecting from the defendant's bulkhead above the waters of the river
was a plant or springboard, from which boys of the neighborhood used to dive. One end of the
board had been placed under a rock on the defendant's land, and nails had been driven at its point
of contact with the bulkhead. Measured from this point of contact the length behind was 5 feet;
the length in front 11. The bulkhead itself was about 3 1/2 feet back of the pier line as located by
the government. From this it follows that for 7 1/2 feet the springboard was beyond the line of
the defendant's property and above the public waterway. Its height measured from the stream
was 3 feet at the bulkhead, and 5 feet at its outermost extremity. For more than five years
swimmers had used it as a diving board without protest or obstruction.

On this day Hynes and his companions climbed on top of the bulkhead, intending to leap
into the water. One of them made the plunge in safety. Hynes followed to the front of the
springboard, and stood poised for his dive. At that moment a cross-arm with electric wires fell
from the defendant's pole. The wires struck the diver, flung him from the shattered board, and
plunged him to his death below. His mother, suing as administrix, brings this action for her
damages. Thus far the courts have held that Hynes at the end of the springboard above the
public waters was a trespasser on the defendant's land. They have thought it immaterial that the
board itself was a trespass, an encroachment on the public ways. They have thought it of no
significance that Hynes would have met the same fate if he had been below the board and not
above it. The board, they have said, was annexed to the defendant's bulkhead. By force of such
annexation, it was to be reckoned as a fixture, and thus constructively, if not actually, an
extension of the land. The defendant was under a duty to use reasonable care that bathers
swimming or standing in the water should not be electrocuted by wires falling from its right of
way. But to bathers diving from the springboard, there was not duty, we are told, unless the
injury was the product of mere willfulness or wantonness--no duty of active vigilance to
safeguard the impending structure. Without wrong to them, cross-arms might be left to rot;
wires highly charged with electricity might sweep them from their stand and bury them in the
subjacent waters. In climbing on the board, they became trespassers and outlaws. The
conclusion is defended with much subtlety of reasoning, with much insistence upon its
 12

inevitableness as a merely logical deduction. A majority of the court are unable to accept it as
the conclusion of the law.
We assume, without deciding, that the springboard was a fixture, a permanent
improvement of the defendant's right of way. Much might be said in favor of another view. We
do not press the inquiry for we are persuaded that the rights of bathers do not depend upon these
nice distinctions. Liability would not be doubtful, we are told, had the boy been diving from a
pole, if the pole had been vertical. The diver in such a situation would have been separated from
the defendant's freehold. Liability, it is aid has been escaped because the pole was horizontal.
The plant when projected lengthwise was an extension of the soil. We are to concentrate our
gaze on the private ownership of the board. We are to ignore the public ownership of the
circumambient spaces of water and of air. Jumping from a boat or a barrel, the boy would have
been a bather in the river. Jumping from the end of a springboard, he was no longer, it is aid, a
bather, but a trespasser on a right of way.
This case is a striking instance of the dangers of "a jurisprudence of conceptions" (Pound,
Mechanical Jurisprudence 8 Columbia Law Review, 605, 608, 610), the extension of a maxim or
a definition with relentless disregard of consequences to "a dryly logical extreme." The
approximate and relative become the definite and absolute. Landowners are not bound to
regulate their conduct in contemplation of the presence of trespassers intruding upon private
structures. Landowners are bound to regulate their conduct in contemplation of the presence of
travelers upon the adjacent public ways. There are times when there is little trouble in marking
off the field of exemption and immunity from that of liability and duty. Here structures and
ways are so united and commingled, superimposed upon each other, that the fields are brought
together. In such circumstances, there is little help in pursuing general maxims to ultimate
conclusions. They must be reformulated and readapted to meet exceptional conditions. Rules
appropriate to spheres which are conceived of as separate and distinct cannot both be enforced
when the spheres become concentric. There must then be readjustment or collision. In one
sense, and that a highly technical and artificial one, the diver at the end of the springboard is an
intruder on the adjoining lands. In another sense, and one that realists will accept more readily,
he is still on public waters in the exercise of public rights. The law must say whether it will
subject him to the rule of the one field or of the other, of this sphere to of that. We think that
considerations of analogy, of convenience, of policy, and of justice, exclude him from the field
of the defendant's immunity and exemption, and place him in the field of liability and duty . . .
The judgment of the Appellate Division and that of the Trial Term should be reversed,
and a new trial granted, with costs to abide the event.

Interpreting the Rule

Bishop Hoadley, discussing the nature of authority in religious and scriptural

interpretation, once said:

Whoever hath an absolute authority to interpret any written or spoken laws, it is

he who is truly the lawgiver, to all intents and purposes, and not the person who
first wrote or spoke them.
 13

The same is true of legal interpretation. Even interpreting the constitution presents very serious
difficulties. Justice Charles Evans Hughes, of the United States Supreme Court, once said:

We are under a Constitution, but the Constitution is what the

Judges say it is.

As if finding the facts of a case and finding the (an) applicable rule were not difficult
enough, the task of interpreting the rule is even more difficult. One area of particular difficulty
is that of interpreting the constitution. Several passages in the United States constitution are
particularly unclear. For example, the eighth amendment prohibits cruel and unusual
punishment, but it says nothing as to which punishments are cruel or unusual. Similarly, the fifth
and fourteenth amendments state that no individual may be "deprived of life, liberty or property
without due process of law" but 'liberty' is never defined and there is no indication of how much
process one is due. Read the following passage from Edward Levi and then the selection from
Griswold v. Connecticut. Given the ambiguity inherent in many legal rules, is it possible to
maintain the mechanical jurists theory of law?

Edward H. Levi, An Introduction to Legal Reasoning

The written Constitution in the United States has been much discussed for the power
which the court says it has been given to invalidate legislative acts. In words reminiscent of
Chief Justice Marshall's language in Marbury v. Madison, Justice Roberts explained the process
as one in which the article of the Constitution is laid beside the statute which is challenged. The
court then decides whether the "latter squares with the former." "All the court does, or can do,"
said Justice Roberts, "is to announce its considered judgment upon the question. The only power
it has, if such it may be called, is the power of judgment. The court neither approves nor
condemns any legislative policy." But as can be seen, while the court neither approves nor
condemns, in its exercise of judgment it does have to determine whether there is any connection
between what has been done and one of the great ideals embodied in the Constitution. The
problem of seeing connection is not so dissimilar from passing upon the wisdom of legislation as
some have thought. If the proposal is one much talked about in the early years of the life of a
justice, it may be easy for him to see the connection even though the proposal appears unwise. It
is much more difficult if the proposal appears both new and foolish.
In addition to the power to hold legislative acts invalid, a written constitution confers
another and perhaps as great a power. It is the power to disregard prior cases. "The ultimate
touchstone of constitutionality is the Constitution itself, and not what we have said about it,"
Chief Justice Frankfurter has written.

Of course, when the constitution is silent, it can tell us very little.

Illustrative Case
Griswold v. Connecticut
 14

381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed.2d 510 (1965)

Mr. Justice Douglas delivered the opinion of the Court.

[Appellants] gave information, instruction, and medical advice to married persons as to
the means of preventing conception. They examined the wife and prescribed the best
contraceptive device or material for her use. Fees were usually charged, although some couples
were serviced free.
The statutes whose constitutionality is involved in this appeal are 53-32 and 54-196 of the
General Statutes of Connecticut (1958 rev.). The former provides:

"Any person who uses any drug, medicinal article or instrument for
the purpose of preventing conception shall be fined not less than fifty
dollars or imprisoned not less than sixty days nor more than one year or
be both fined and imprisoned."

Section 54-196 provides:

"Any person who assists, abets, counsels, causes, hires or commands
another to commit any offense may be prosecuted and punished as if he
were the principal offender."

The appellants were found guilty as accessories and fined $100 each, against the claim
that the accessory statute as so applied violated the Fourteenth Amendment. [The Court then
found appellants had standing to challenge the constitutionality of the statutory schema.]
Coming to the merits, we are met with a side range of questions that implicate the Due Process
Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v.
State of New York, should be our guide. But we decline that invitation . . . We do not sit as a
super-legislature to determine the wisdom, need, and propriety of laws that touch economic
problems, business affairs, or social conditions. This law, however, operates directly on an
intimate relation of husband and wife and their physicians's role in one aspect of that relation.

We have had many controversies over these penumbral rights of "privacy and
repose." . . .
The present case, then concerns a relationship lying within the zone of privacy created by
several fundamental constitutional guarantees. And it concerns a law which, in forbidding the
use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals
by means having a maximum destructive impact upon that relationship. Such a law cannot stand
in light of the familiar principle, so often applied by this Court, that a "governmental purpose to
control or prevent activities constitutionally subject to state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of
the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the
marriage relationship.

Mr. Justice Stewart, dissenting.

 15

Since 1879 Connecticut has had on its books a law which forbids the use of
contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the
law is obviously unenforceable, except in the oblique context of the present case. As a
philosophical matter, I believe the use of contraceptives in the relationship of marriage should be
left to personal and private choice, based upon each individual's moral, ethical, and religious
beliefs. As a matter of social policy, I think professional counsel about methods of birth control
should be available to all, so that each individual's choice can be meaningfully made. But we are
not asked in this case to say whether we think this law is unwise, or even asinine. We are asked
to hold that it violates the United States Constitution. And that I cannot do.

What provision of the Constitution, then, does make this state law invalid? The Court
says it is the right of privacy "created by several fundamental constitutional guarantees." With
all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of
the Constitution, or in any case ever before decided by this Court.

Alternative Applications of a Rule

In the following case, the full blown problem of applying a rule, as the judge interprets it,
to the facts, as the court finds them, becomes clear. This is a British case in which each of the
five appeals court judges renders an opinion as to the correct outcome of the case. As you read
each of the five rationales, ask yourself whether any two of the five judges agree as to the nature
of the case or of the rule to be applied. If they disagree, what does that disagreement tell you
about the views of the mechanical jurist?

Illustrative Case
Donoghue v. Stevenson
House of Lords, A.C. 562 (1932)

May 26. Lord Buckmaster.

My Lords, the facts of this case are simple. On August 26, 1928, the appellant drank a
bottle of ginger-beer, manufactured by the respondent, which a friend had bought from a retailer
and given to her. The bottle contained decomposed remains of a snail which were not, and could
not be, detected until the greater part of the contents of the bottle had been consumed. As a
result she alleged, and at this stage her allegations must be accepted as true, that she suffered
from shock and severe gastro-enteritis. She accordingly instituted the proceedings against the
manufacturer which have given rise to this appeal.
The foundation of her case is that the respondent, as the manufacturer of an article
intended for consumption and contained in a receptacle which prevented inspection, owed a duty
to her as consumer of the article to take care that there was not noxious element in the goods, that
he neglected such duty and is consequently liable for any damage caused by such neglect.
Before examining the merits two comments are desirable: (1.) That the appellant's case
rests solely on the ground of a tort based not on fraud but on negligence; and (2.) that throughout
the appeal the case has been argued on the basis, undisputed by the Second Division and never
 16

questioned by counsel for the appellant or by any of your Lordships, that the English and the
Scots law on the subject are identical. It is therefore upon the English law alone that I have
considered the matter, and in my opinion it is on the English law alone that in the circumstances
we ought to proceed.
The law applicable is the common law, and, though its principles are capable of
application to meet new conditions not contemplated when the law was laid down, these
principles cannot be changed nor can additions be made to them because any particular
meritorious case seems outside their ambit.
Now the common law must be sought in law books by writers of authority and in
judgments of the judges entrusted with its administration. The law books give no assistance,
because the work of living authors, however deservedly eminent, cannot be used as authority,
though the opinions they express may demand attention; and the ancient books do not assist. I
turn, therefore, to the decided cases to see if they can be construed so as to support the appellant's
case . . .
The general principle of these cases is stated . . . in these terms: "The breach of the
defendant's contract with A. to use care and skill in and about the manufacture or repair of an
article does not of itself give any cause of action to B. when he is injured by reason of the article
proving to be defective."
From this general rule there are two well known exceptions: (1.) In the case of an article
dangerous in itself; and (2.) where the article not in itself dangerous is in fact dangerous, by
reason of some defect or for any other reason, and this is known to the manufacturer.
As to (1.), in the case of things dangerous in themselves, there is, in the words of Lord
Dunedin, "a peculiar duty to take precaution imposed upon those who send forth or install such
article when it is necessarily the case that other parties will come within their proximity" . . .
And as to (2.), this depends on the fact that the knowledge of the danger creates the obligation to
warn, and its concealment is in the nature of fraud. In this case no one can suggest that ginger-
beer was an article dangerous in itself, and the words of Lord Dunedin show that the duty
attaches only to such articles, for I read the words "a peculiar duty" as meaning a duty peculiar to
the special class of subject mentioned.
The authorities are against the appellant's contention, and, apart from authority, it is
difficult to see how any common law proposition can be formulated to support her claim.
The principle contended for must be this: that the manufacturer, or indeed the repairer, of
any article, apart entirely from contract, owes a duty to any person by whom the article is
lawfully used to see that it has been carefully constructed. All rights in contract must be
excluded from consideration of this principle, such contractual rights as may exist in successive
steps from the original manufacturer down to the ultimate purchaser are ex hypothesi immaterial.
Nor can the doctrine be confined to cases where inspection is difficult or impossible to introduce.
This conception is simply to misapply to tort doctrine applicable to sale and purchase.
The principle of tort lies completely outside the region where such considerations apply,
and the duty, if it exists, must extend to every person who, in lawful circumstances, use the
article made. There can be no special duty attaching to the manufacture of food apart from that
implied by contract or imposed by statute. If such a duty exists, it seems to me it must cover the
construction of every article, and I cannot see any reason why it should not apply to the
construction of a house. If one step, why not fifty? Yet if a house be, as it sometimes is,
 17

negligently built, and in consequence of that negligence the ceiling falls and injures the occupier
or any one else, no action against the builder exists according to the English law, although I
believe such a right did exist according to the laws of Babylon.
. . . I am of opinion that this appeal should be dismissed, and I beg to move your
Lordships accordingly.
Lord Atkin. My Lords, the sole question for determination in this case is legal: Do the
averments made by the pursuer in her pleading, if true, disclose a cause of action? I need not
restate the particular facts. The question is whether the manufacturer of an article of drink sold
by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser
or consumer from discovering by inspection any defect, is under any legal duty to the ultimate
purchaser or consumer to take reasonable care that the article is free from defect likely to cause
injury to health . . .
The law appears to be that in order to support an action for damages for negligence the
complainant has to show that he has been injured by the breach of a duty owed to him in the
circumstances by the defendant to take reasonable care to avoid such injury. In the present case
we are not concerned with the breach of the duty; if a duty exists, that would be a question of
fact which is sufficiently averred and for present purposes must be assumed. We are solely
concerned with the question whether, as a matter of law in the circumstances alleged, the
defender owed any duty to the pursuer to take care.
It is always a satisfaction to an English lawyer to be able to test his application of
fundamental principles of the common law by the development of the same doctrines by the
lawyers of the Courts of the United States. In that country I find that the law appears to be well
established in the sense in which I have indicated. The mouse had emerged from the ginger-beer
bottle in the United States before it appeared in Scotland, but there it brought a liability upon the
manufacturer. I must not in this long judgment do more than refer to the illuminating judgment
of Cardozo in MacPherson v. Buick Motor Co., in which he states the principles of the law as I
should desire to state them, and reviews the authorities in other States than his own. Whether the
principle he affirms would apply to the particular facts of that case in this country would be a
question for consideration if the case arose. It might be that the course of business, by giving
opportunities of examination to the immediate purchaser or otherwise, prevented the relation
between manufacturer and the user of the car being so close as to create a duty. But the
American decision would undoubtedly lead to a decision in favor of the pursuer in the present
case.
I think that this appeal should be allowed.
Lord Tomlin. My Lords, I have had an opportunity of considering the opinion . . . .
prepared by my noble and learned friend, Lord Buckmaster . . .
I will only add to what has been already said by my noble and learned friend, Lord
Buckmaster, with regard to the decisions and dicta relied upon by the appellant and the other
relevant reported cases, that I am unable to explain how the cases of dangerous articles can have
been treated as "exceptions" if the appellant's contention is well founded. Upon the view which I
take of the matter the reported cases--some directly, others impliedly--negative the existence as
part of the common law of England of any principle affording support to the appellant's claim,
and therefore there is, in my opinion, no material from which it is legitimate for your Lordships'
House to deduce such a principle.
 18

Lord Thankerton. The special circumstances from which the appellant claims that such a
relationship of duty should be inferred may, I think, be stated thus--namely, that the respondent,
in placing his manufactured article of drink upon the market, has intentionally so excluded
interference with, or examination of, the article by any intermediate handler of the goods
between himself and the consumer that he has, of his own accord, brought himself into direct
relationship with the consumer, with the result that the consumer is entitled to rely upon the
exercise of diligence by the manufacturer to secure that the article shall not be harmful to the
consumer. If that contention be sound, the consumer, on showing that the article has reached her
intact and that she has been injured by the harmful nature of the article, owing to the failure of
the manufacturer to take reasonable care in its preparation prior to its enclosure in the sealed
vessel, will be entitled to reparation from the manufacturer.
In my opinion, the existence of a legal duty under such circumstances is in conformity
with the principles of both the law of Scotland and of the law of England. .
I am therefore of opinion that the appeal should be allowed and the case should be
remitted for proof, as the pursuer did not ask for an issue.
Lord MacMillan.
It humbly appears to me that the diversity of view . . . is explained by the fact that in the
discussion of the topic which now engages your Lordships' attention two rival principles of the
law find a meeting place where each has contended for supremacy. On the one hand, there is the
well established principle that no on other than a party to a contract can complain of a breach of
that contract. On the other hand, there is the equally well established doctrine that negligence
apart from contract gives a right of action to the party injured by that negligence--and here I use
the term negligence, of course, in its technical sense, implying a duty owed and neglected. The
fact that there is a contractual relationship between the parties which may give rise to an action
for breach of contract, does not exclude the co-existence of a right of action founded on
negligence as between the same parties, independently of the contract, though arising out of the
relationship in fact brought about by the contract. Of this the best illustration is the right of the
injured railway passenger to sue the railway company for either for breach of contract of safe
carriage or for negligence in carrying him. And there is no reason why the same set of facts
should not give one person a right of action in contract and another person a right of action in
tort . . .
To descend from generalities to the circumstances of the present case, I do not think that
any reasonable man or any twelve reasonable men would hesitate to hold that, if the appellant
establishes her allegations, the respondent has exhibited carelessness in the conduct of his
business. For a manufacturer of aerated water to store his empty bottles in a place where snails
can get access to them, and to fill his bottles without taking any adequate precautions by
inspection or otherwise to ensure that they contain no deleterious foreign matter may reasonably
be characterized as carelessness without applying too exacting a standard . . .
The appeal should be allowed.

Having read the case, can you figure out what happened? Who won? Do any two
of the five judges agree about the nature of the case or about which rules are applicable to
 19

the case or how the rule(s) ought be interpreted and applied to the case? Is there any
hope left for the mechanical jurist?

Problems of the sort that discussed in the previous sections have lead many legal theorists
to abandon mechanical jurisprudence as a viable theory of law. Of course, before one can
abandon a theory, one needs a replacement theory. One obvious candidate for a replacement
theory of judicial reasoning is that judges should be Philosopher-Kings, carefully exercising their
wisdom to decide cases. Such a view is not without obvious difficulties (like the problem of
identifying philosopher-kings), but Paul Freund, a judge and legal theorists, insists:

It is of course dangerous that judges be philosophers--almost as

dangerous as if they were not.