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LEGAL EXISTENTIALISM: REASONING BEYOND REASON IN THE LAW
James C. Raymond, Ph.D.
Presented at the ‘Judicial Reasoning: Art or Science ?’ Conference (February 2009) National Judicial College of Australia/ ANU College of Law/Australian Academy of Forensic Sciences
Part I: Introduction
In Scott Turow’s novel, Presumed Innocent, a prosecuting attorney describes himself as “a functionary of our only universally recognized system of telling wrong from right, a bureaucrat of good and evil.”

There is something almost irresistible about the notion that legal reasoning is or at least could be a universal system, transcending competing claims of objectivity in ethics, both religious and secular, transcending even the post-modern assertion that there is no objectivity in these matters. It would be reassuring to imagine that the judicial process could distinguish between good and evil in a way that impartial people everywhere would find persuasive.

But judicial reasoning is neither universal nor systematic, if by that we mean a precise set of rules, procedures, and standards of proof. Nor can it be counted on to reach results that would qualify as scientifically valid or reliable. The title of this conference—“Judicial Reasoning, Art orScience?”—could be construed to betray a touch of science envy. Does it suggest that we would be better off if judicial reasoning were scientific? Is there, perhaps, a hint of condescension in the word “art,” as if it were preceded by an unstated “merely”? 2

The question could be rephrased in two ways, each subtly tendentious, but in opposite directions. We might ask whether judicial reasoning could ever achieve the precision and reliability of science. Answering this question in the negative would seem to imply that judicial reasoning is inferior to scientific reasoning. We might also ask whether science is equipped to address the sorts of questions that courts must address. Answering this question in the negative would imply that it is scientific reasoning that is in some way limited, not the other way around. Obviously, the short answer to either question is that it depends on how you define each field.

Part II: Why Legal Reasoning Cannot Be Scientific
In practice, science and jurisprudence are fundamentally different discourses. Science can play a part in jurisprudence, particularly as an aid to fact finding in certain situations; but science is not equipped to find facts when reliable data are unavailable, nor to answer—or even to ask—the sorts of questions that courts routinely must address. However much we might wish otherwise, legal reasoning cannot escape patterns of soft logic that are excluded from science. Nor can it avoid language that is rotten with ambiguity. Legal reasoning is invariably implicated with “entities” that cannot be quantified or directly observed, quasi syllogisms that are ultimately ideological, reaching conclusions that may turn out to be false, invalid, or unjust. The logic of science, as A. J. Ayer describes it, is very strict. It was Ayer who introduced logical positivism to the English speaking world in Language, Truth, and 3

Logic (1936). To be a genuine proposition, Ayer declared, a statement must be either tautological or capable of being tested empirically. i
In other words, statements that are neither tautological nor susceptible to empirical testing cannot count as science. They represent, as Ayer puts it, pseudoconcepts. Legal reasoning, on the other hand, includes, tropes of soft logic that are methodologically excluded from science. Justice Richard Posner of the U.S. Court of Appeals for the Seventh Circuit describes it as “a grab bag that includes anecdote, introspection, imagination, common sense, empathy, imputation of motives, speaker’s authority, metaphor, analogy, precedent, custom, memory, ‘experience,’ intuition, and induction.” Posner, Problems, at 73.2

Anyone who finds Posner’s observations about legal reasoning disconcerting might find...
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