A FO RMA L MODE L FOR JUDI CI A L DISCRETION
Noel B. REYNOLDS
The problem o f ju d icia l d iscre tio n re vo lve s around th e appropriate roles o f fo rma l o r deductive reasoning and non-formal o r in t u it ive reasoning i n th e o ve ra ll process o f ju d icia l
reasoning. Bo th f o rma l deductive patterns o f le g a l ru le s a n d
facts and in tu itive insights o r "senses of fairness" have always
been inseparable f ro m ju d icia l reasoning as i t occurs i n re a l
life. Ye t, these t w o elements h a ve n e ve r been successfully
reconciled in a single f o rma l mo d e l th a t outlines cle a rly the
respective role fo r each. It will be proposed here that b y adapting the hypothetico-deductive model o f explanation f ro m the
philosophy o f science we can p ro vid e a n e w d yn a mic mo d e l
for ju d icia l reasoning that th rive s o n the tension between in tuition and deduction ra th e r than foundering o n it.
The important ke y to resolving the traditional antinomy between th e g o ve rn in g p rin cip le s o f in tu itio n and deduction is
the simp le recognition th a t ju d icia l decisions, l i k e scie n tific
discoveries, g e n e ra lly sp rin g f ro m a two-phase process. Th e
first is the context o f d isco ve ry where the min d o f the judge
or scie n tist wre stle s n o n -fo rma lly wit h a p a rticu la r problem.
Once he finds a satisfactory solution he moves to the second
phase, the context o f justification. A t this p o in t he develops a
formal argument o r thought pattern th a t ju stifie s h is so lu tio n
by lin k in g i t d e d u ctive ly to re le va n t ru le s and principles.
This approach to a solution o f the p ro b le m o f ju d icia l d iscretion rests on the premise that legal reasoning is b u t a subspecies o f human reasoning and, therefore, must fo llo w the same
basic patterns. Deduction is th e standard f o rm f o r presenting
controversial conclusions f o r th e consideration o f reasonable
men. I t is a n a tu ra lly occurring standard in that whenever the
abstractions o r class concepts that populate o u r mental wo rld s
are given expression in language, we fin d that if they are not
deductively related that they are not g ra ma tica lly correct. But
356
N
.
B. REYNOLDS
as deduction is an exceedingly ponderous and tedious method
of searching va g u e ly related groups o f abstractions in a p ro blem-solving co n te xt, in t u it ive , n o n -f o rma l t h o u g h t mo d e s
fortunately intervene to make p riva te thought possible.
Judicial Opinions as Explanations
Simply defined, a ju d icia l opinion is a statement wh e re in a
judge offers f o rma l and h o p e fu lly persuasive reasons f o r h is
ruling. Alth o u g h th e fo rma t ma y va ry, th e standard purpose
of writte n opinions is to explain wh y the judge believes the decision to be correct. Likewise, dissenting judges generally seek
to explain wh y another decision o r rationale wo u ld make more
sense. I n e ith e r case we can see th a t ju d icia l opinion writ in g
is an explanatory process. A l l that is f o rma lly required o f the
judge i s a decision — " g u ilt y" , " a ffirme d " , "remanded", etc.
But judges ve ry often feel compelled to ju st if y th e ir judgment
with a n explanation wh ich appeals t o t h e reason o f a ll i n terested parties and shows h o w the judge necessarily reached
the decision as rendered.
In adopting Reichenbach's d istin ctio n between the contexts
of discovery and justification, we imp licit ly equate ju d icia l decision-making wit h non-formal reasoning of scientific discovery.
This le a ve s f o rma l ju d icia l o p in io n s ( o r d e cisio n -ju stifyin g )
to be equated wit h formal scientific explanations as they arise
in th e co n te xt o f justification. Inasmuch as th e opinions ca n
be regarded a s explanations, w e ca n p ro f it a b ly t u rn t o t h e
advances made in the theory of scientific explanation fo r many
important insights in to th e nature o f explanation and th e appropriate f o rm f o r explanations t o f o llo w. Th is, i n t u rn w i l l
suggest the beginning o f an o ve ra ll model f o r ju d icia l reasoning. W e can take o u r cue f ro m Professor Perelman, wh o has
made e xp licit comparisons between scientific explanations and
justifications o f ethical choices:
To explain a phenomenon is to show how it is deduced
from the accepted rules. I f it conforms to the conclusion
A FO RMA L MO DEL FO R J UDI CI A L DI SCRETI O N
3
5
7
of a chain of reasoning which invokes accepted premises
the phenomena is explained.
The same th in g applies wh e n i t comes t o ju st if yin g
an act. Th e a ct is ju st if i t conforms t o the conclusion
of a chain of reasoning of wh ich the premises have been
granted, o n e o f these co n stitu tin g a deontic ju d g me n t
flowing f ro m a fo rmu la o f concrete justice.
Explanation and ju stifica tio n ma ke use o f th e same
procedure o f reasoning. Th e y d iffe r o n ly in the nature
of one o f the premises o f the argument (
t
).
Taking th e broad perspective suggested here b y Perelman
we can go o n to see i f the same lo g ica l stru ctu re wh ich has
proved so useful i n science mig h t n o t a lso b e as applicable
to the la w as it is to ethics. Wit h a ll the comparisons o f scientific and legal method that have been made o ve r the past century, h a rd ly anyone seems to have found the same reasoning
patterns a t wo rk in both the judge's chamber and the laboratory. Th e y have a ll missed the implications o f the simple fa ct
that judges and scientists a re a ll me n engaged in simila r endeavors; as th e y each strive to fin d t ru t h and to ju st if y t h e ir
conclusions, th e y are a ll constrained to f o llo w simila r patterns
of non-formal and fo rma l thought.
Abraham Kaplan has distinguished two types o f explanation
that co u ld be taken as re le va n t t o la w. Th e f irst is semantic
and seeks t o cla rif y the meanings o f words. I t is appropriate
for use in rational systems o f ethics, etc., as in vo ke d b y Perelman in the above quotation. The second is scientific and seeks
to rationalize e mp irica l phenomena wit h wh a t is believed t o
be tru e o f the physical wo rld (
losophers
have taken explanation to be relevant to la w, i t has
2
largely
been
the efirst sense above, and la w was consequently
). T o
tin h
treated
as
a
fo
rma
e x t e n t l rational system with o u t e mp irica l referentce. Although
h
a thet logical structure of both types o f explanation
lare bea sicaglly th e
a same,
l i t w i l l b e proposed i n wh a t f o llo ws
that
la
w
can
mo
re
p
ro
p
h
i
- fita b ly b e compared wit h a n e mp irica l
science wh ich a llo ws experience t o co rre ct the e rro rs o f o ld
358
N
.
B. REYNO LDS
explanations, thereby achieving a species of corporate progress
and o b je ct ivit y i n the actual a d min istra tio n o f the la w.
Although t h e re h a s re ce n t ly b e e n considerable o b je ctio n
raised against the deductive model, we fin d th a t explanations
are inadequate if they do not make a t least ta cit reference to
general la ws. I t is we ll etablished in contemporary th e o ry o f
explanation th a t
all scie n tific explanation in vo lve s, e xp licit ly o r b y implication, a subsumption o f it s su b je ct ma t t e r u n d e r
general regularities; i t seeks to provide a systematic
understanding o f e mp irica l phenomena b y showing that
they f it in t o a nomic nexus (
3
"In a) . wo rd , w e e xp la in a fa ct b y adducing th e la w wh ich
governs i t " (
4
theory
and the la ws it mig h t include can be in vo ke d to order
a raT
n ghe o
).
i fs phenomena. Because ce rt a in phenomena ca n b e
explained
i l l u s by
t reference to governing laws wh ich in turn depend
on
r atheory,
t e s we can see that " e ve ry th e o ry ma y be said to demarcate
t
h a n explanatory sh e ll f o r th e phenomena wit h wh ich
it
e deals. The shell around a given event is, as it were, a sphere
containing
whatever is referred to in the theory of that event (
m
a
3n Thendeductive model o f explanation has been developed in
).
its
fo rm la rg e ly through the efforts o f philosophers o f
e present
r
science
in this century, especially Hempel, Popper and Braithi
waite.
I t has been va rio u sly referred to in slig h tly altered ve rn
sions
as
the deductive-nomological, the hypothetico-deductive,
w
or
simp
ly
the deductive model. Alth o u g h deductive explanah
tions
o fte n p ro vid e mo re explanation than is p sych o lo g ica lly
i
necessary,
th e y do present a ll t h e ir presuppositions and lin ks
c
to
co
ve
rin
g
la ws i n such a wa y th a t th e y a re f u lly exposed
h
to
o
rd
e
rly
a
n d e ffe ctive testing. A n d although t h e y d o n o t
g
guarantee
th
e ce rta in ty th a t some o f t h e ir proponents cla im,
e
they
a re no less certain than a n y alternative approach. Scienn
tists
and
judges cannot be discouraged b y evidence that there
e
is
probably
some e rro r in a ll th e ir formulations. Judges in parr
ticular
cannot
be sceptics. Political necessity demands that they
a
l
A FO RMA L MO DEL FO R J UDI CI A L DI SCRETI O N
3
5
9
make decisions h e re a n d n o w. Th e p u rsu it o f ce rta in ty is a
lu xu ry th e p o litica l co mmu n ity cannot afford.
This mo d e l suggests that, as i n science, th e o b je ctivity appropriate f o r ju d ic ia l re a so n in g i s n o t t o b e fo u n d i n t h e
mechanical procedures used in a single case, but in the relationship o f one case to a ll others and the principles th e y espouse.
The judge's ra tio decidendi constitutes a hypothesis as to what
is th e ju st and legal solution o f that kin d o f controversy. His
hypothesis w i l l be tested as n e w cases a rise under the same
principles. A s th e y are found to be ju st ly resolved under the
earlier principles, these p rin cip le s w i l l b e " co rro b o ra te d " a s
being true of the law in that state. But should later cases require
some modification of the earlier principles fo r a just settlement,
the e a rlie r principles a re " fa lsifie d " a n d need t o be corrected
or replaced. Th e n e w ve rsio n becomes i n t u rn a hypothesis
to be tested b y future cases (
e Thus we see the judge laboring in the context o f d isco ve ry
)to
. fin d th e suitable p rin cip le f o r ju st ly re so lvin g a p a rticu la r
controversy. He is guided e xte n sive ly b y h is f a milia rit y wit h
the p rin cip le s o th e r judges h a ve used successfully in simila r
cases. B u t should th e instant case d if f e r f ro m the precedents
in a n y significant d e ta il, o r should th e precedents b e u n d e r
moral censure fro m the p o litica l community, the judge will also
need to re fe r to h is in tu itive notions o f justice to fin d a " co rrect" solution. Alth o u g h there can be no standard mechanism
to guarantee that he does in fact find the " co rre ct" solution in
a p a rticu la r case, the mechanism o f intersubjective testing o f
his ra tio decidendi b y other judges and b y public opinion w i l l
soon detect a n y e rro rs and d imin ish o r eliminate them in the
future.
Admittedly, th is proposal gives u p th e p o sitivist id e a l o f a
rational model that will find a unique correct decision in every
concrete case. I t appeals t o t h e f l u x o f p u b lic o p in io n a n d
sense o f fairness and ju stice as metaphysical ju stifica tio n f o r
its truths. I t makes no cla im to f u ll ra tio n a lity in the a n a lytic
sense, b u t instead seeks a second-order ra tio n a lity in the ongoing ju d icia l process, the process o f fin d in g better solutions
to le g a l problems th ro u g h educated hypothesis a n d t ria l.
360
N
.
B. REYNOLDS
Some w i l l object that it is one thing to a llo w the scientist the
lu xu ry o f endless experimentation in his la b o ra to ry and quite
another t o t u rn a corps o f judges loose o n a fre e so cie ty t o
find wh a t is just. Bu t these crit ics need to produce some n e w
model o f ju d icia l reasoning that takes this in fo rma l o r subjective element out o f ju d icia l discretion. I f ju d icia l discretion is
both re a l and necessary, a s th e above mo d e l claims, th e important mo ve is t o harness and channel i t and salvage wh a tever ra tio n a lity and o b je ct ivit y one can. Fo r this purpose the
hypothetico-deductive mo d e l o f scie n tific e xp la n a tio n seems
almost e xa ctly lik e th e le g a l reasoning we a re t ryin g t o e xplicate. I t a llo ws th e judge to search h is fo rma l and in fo rma l
knowledge f o r th e best so lu tio n wh ich h e mu st then present
in f o rma l deductive f o rma t as a ju stifica tio n . Th e la t t e r step
acts as a co n tro l o n the fo rme r as i t formulates a hypothesis
which a ll human experience can test and q u ickly reject if it is
found t o b e defective. Iro n ica lly, t h is seems i n a w a y t o be
more o b je ctive th a n t h e p o sit ivist id e a l wh ic h co u ld sa fe ly
ignore the moral consensus of a society, re lyin g on sterile logic
and printed statutes.
The above proposal is much mo re objective and rational in
its encounter wit h p o litica l realites. Furthermore, i t explains
how ju d icia l re vie w can operate o b je ctive ly to keep th e la w
current wit h the mo ra l attitudes o f the public, with o u t having
to re d ra w i t through p o litica l o r milit a ry revolutions. I t also
reveals mo re cle a rly the u tte r helplessness o f judges o r other
political leaders t o h o ld together a so cie ty th a t is lo sin g it s
basic mo ra l consensus.
Philosophers o f science have advanced t h e ir understanding
of scie n tific reasoning g re a t ly b y p a yin g s t ric t attention t o
what scientists i n fa ct do. I t is proposed th a t jurisprudence
could p ro f it g re a t ly b y f o llo win g t h e ir lead.
Brigham Young Un ive rsit y
Provo, Utah, U.S.A.
A FO RMA L MO DEL FO R J UDI CI A L DI SCRETI O N
3
6
1
NOTES
(I) Ch a im PERELMAN, Th e I dea o f J us tic e a n d t h e Problem o f Argument ,
trans. J ohn PETRIE (London: Rout ledge and Kegan Paul, 1963), p. 43.
(
Publishing,
1964), p p . 327-32.
2
()
Press,
3
A 1965), p . 488.
)b(
(4
rC
)
a(5
Discovery
(Ne w Y ork : Ha rp e r and Row, 1965), wh ic h has had a perv as iv e
)K
rh8
influence
o n my approac h t o t his problem.
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