REASONS A N D RULINGS
A rn u lf ZWEIG
The thesis o f this paper can be stated quite simp ly. I t is that
a search f o r the " ju stifica tio n " o f " ju d icia l reasoning" is misguided, if that project is intended to d e live r a general account
of the " lo g ic" o f ju d icia l reason-giving. ( M y concern here is
with reason-giving rather than wit h decision-making, i.e., wit h
the relations between reasons and rulings, and wit h the nature
of the reasons that can and are given in support of a ru lin g o r
interpretation, not with the processes and motivations that lead
a judge to ma ke th e decisions he makes). I wa n t to ma in ta in
that th e ju stifica tio n o f ju d icia l decisions can, a n d p ro p e rly
should, ta ke as ma n y fo rms as does th e crit icism o f ju d icia l
decisions, a n d that the variety of possible criticisms is a s g re a t
as t h e v a rie t y o f possible crit icisms o f h u ma n a ctio n s a n d
decisions g e n e ra lly.
There should be nothing startling in these assertions. I hope
they have the rin g of obviousness, even of t rivia lit y, that goes
with t h e commonplace. O f course w e crit icize (a n d defend)
ju d icia l decisions i n a n enormous n u mb e r o f wa ys: w e t r y
to sh o w that th e y are f a ir o r unfair, ju st o r p o litica l, wise o r
unwise, bigoted o r enlightened, ca p ricio u s o r p rin cip le d , co wa rd ly o r courageous, honest o r evasive, etc., a n d these a re
words wh ich we kn o w how to a p p ly perfectly we ll in o rd in a ry
life, outside the re a lm o f jurisprudence and the la w, wh e n we
consider human beings and th e ir lives. Th is is n o t to say that
ordinary co mmo n sense, wit h o u t specialized kn o wle d g e o r
experience, is sufficient to enable us to apply such words co rre ctly everywhere. A ma n wh o kn o ws nothing o f mu sic ma y
be in no position to criticize a Beethoven performance o r in terpretation as eccentric, distorted, undisciplined, o r to praise
it f o r its logic, coherence, understanding, technical virtu o sity,
elegance o r pathos, He ma y be expert in using these wo rd s in
other contexts, discerning the logic o r illo g ic of a mathematical
422
A
.
ZWE I G
proof, t h e distortions o r p e rsp ica city o f a p o litica l co mme n tator, the pathos of a Tolstoy novel, the faithfulness of a builder
to the architects's plans, and yet he may be to ta lly baffled when
he hears musicians argue wit h these same words. S imila rly, a
man wh o kn o ws people and th e ir virtu e s and faults ma y we ll
be at a loss to tell, o r even understand, wh a t is meant when a
court's ru lin g i s crit icize d o r p ra ise d a s evasive, co wa rd ly,
heroic, capricious etc. He must learn something about h o w the
institutions of the la w operate, and know what is at stake in the
particular ca se b e fo re h e h a s a b a sis o f assessment; a n d
learning these things is, among other things, fin d in g o u t h o w
ju d icia l reasoning can go wro n g .
The point of emphasizing these fa milia r facts and of stressing
that we have a large number of critica l words in our repertoire
is, fo r one thing, to help us get a wa y fro m an exclusive preoccupation wit h the t wo o r three terms o f assessment — " ju st" ,
"logical", and " ra tio n a l" are the favorites — on wh ich philosophers wh o discuss the ju stifica tio n o f legal reasoning are gene ra lly in clin e d to focus. Th e p o in t is also to see that the determination o f wh a t is a n adequate " ju stifica tio n " ca n n o t b e
reduced to a n y litmus-paper test. H o w we ju st if y o r wh e th e r
we can ju st if y a ju d icia l decision w i l l depend on wh a t we are
called upon to ju stify, i.e., o n wh a t charges o r criticisms a re
being answered. W e d o n o t re a lly kn o w wh a t we a re being
asked t o d o wh e n someone questions t h e " ra t io n a lit y " o r
" lo g ic" of judicial decisions in vacuo. The demand fo r justification makes sense o n ly in a context where one can see what is
being questioned, challenged, wo rrie d about. A n d since there
are many ways of questioning the adequacy of a decision, many
ways i n wh ich reason-giving ca n g o wro n g , th e re a re a lso
many things th a t w i l l count, i n th is o r that context, as a ju stification.
But I wa n t to go beyond these Austinian homilies to a point
of positive Wisd o m (
l
grasp
o f some important wa ys in wh ich ju d icia l reason-giving
can
and attacked if we notice how, in cases wh ich
), vbei zjustified
. ,
It hope
a
re
n
o
t
a typ ica l, t h e re la t io n between reasons a n d
h a t
rulings
w
ecan be other than logical. A more radical point which,
s
h
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l
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h
a
v
e
a
m
o
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e
a
d
e
q
u
a
t
e
REASONS A N D RULI NG S
4
2
3
at the ris k o f seeming to defend wh a t Professor Wasserstrom
calls " in t u it iv e o r visce ra l re a ctio n s" (
2
tempted
to maintain is this: some ju d icia l decisions and arguments
seen to be reasonable, wise, justified, and some
) , I canabe m
n eb ev seen
can
e r tto hb e ep al teen tly
s misguided,
s
ill-co n ce ive d , u n ju st,
etc., wit h o u t o u r being able to g ive a " ra tio n a l decision p ro cedure" f o r determining that this is so. Ye t it is so, and we —
or some o f us — kn o w it is so. We learn to t e ll non sequiturs
and distortions and dishonesty as w e le a rn t o recognize d issonance, bad breath, insolence, hypocrisy, and it is not always
possible — o r necessary — to explain wh y these qualities are
present when they are present. Wh e n someone questions a ju dicial decision or the warrantedness of a judicial interpretation,
the answer ma y be t o sh o w him, o r to get h im to see aspects
of the case to wh ich he has been blind; and this need not take
the f o rm o f supplying h im wit h reasons. I t ma y be a ma tte r
of opening his eyes to the importance of something he had not
adequately prized. There is humane and inhumane reasoning,
aside fro m a ll questions o f fo rma l va lid ity, obedience to legal
rules, su fficie n cy o f e mp irica l evidence, etc-, a n d i t ma y b e
that, a t least in some st rikin g cases, a man can recognize this
and le a d others t o share h is in sig h t. Ju stifica tio n d o e s n o t
always consist i n deducing o r sh o win g th e d e d u cib ility o f a
conclusion f ro m a set o f rules o r premises o r principles.
An illu stra tio n from the field of aesthetics may help to cla rify
this. I may ju stify my interpretation of a line of poetry as iro n ic
by re cit in g i t t o y o u i n a sp e cia l wa y . Ta ke , f o r e xa mp le
T. S. Elio t's lin e , " A g a in , in spite o f that, we ca ll th is Frid a y
good" (') and consider a controversy between two readers who
disagreed on whether the lin e wa s iro n ic. On e o f them mig h t
appeal to the fact of Eliot's religious orthodoxy, and his genera lly conservative intentions, t o su p p o rt t h e co n clu sio n t h a t
the lin e was not to be read iro n ica lly; the other might get h im
to see tha t h is argument was defective, and that the lin e had
to b e re a d another w a y b y sh o win g h im. Questions o f h o w
a musical score has to be interpreted or what the correct tempo
for a piece is a re often settled i n a n analogous fashion, n o t
by g ivin g reasons b u t b y humming. A conductor ma y say, " I t
424
A
.
ZWE I G
has to go lik e th is !" and shake h is f ist vio le n t ly a t the ce llo
section. The fist-shaking calls attention to, o r illustrates, a wa y
of playing the music. I t leads the players to the co rre ct result
— not inevitably, o f course: the players must see the p o in t o f
these gestures.
I wish that my knowledge of cases and decisions and ju d icia l
arguments we re much greater, so that I could offer many legal
examples o f wh a t I have been saying. Fortunately the limit a tions o n the permissible length o f papers a t this congress w i l l
conceal some o f my o wn limita tio n s in th is regard. B u t there
is t ime f o r perhaps one o r t wo illustrations, wh ich ma y serve
at least to g ive some semblance o f p la u sib ility to m y claims.
Let u s co n sid e r t h e co mp e tin g arguments i n a we ll-kn o wn
Supreme Co u rt d e cisio n i n t h e Un it e d States, so me t we lv e
years ago, Barenblatt v. U.S., (1959) (
of
4 an in d ivid u a l, a teacher, t o refuse to answer ce rta in questions
y th
) . Ap ut t t oi hsi ms b u
e e House Co mmitte e o n Un -A me rica n
Activitie
s
(HUA
C,
as
i
t wa s affectionately called) d u rin g the
w
a
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o
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h
e
co
mmitte
e 's i n q u i ry in t o a lle g e d Co mmu n ist
t
h
e
in
r filtra
i tio ng in the
h f iet ld o f education. A ma jo rit y o f the court,
with Justice Ha rla n presenting the arguments, concluded that
HUA C had legitimate legislative interests in asking Barenblatt
whether he was o r had ever been a member of the Communist
Party, and that those interests, wh e n balanced against the in terests o f Barenblatt i n re ma in in g sile n t about h is p o lit ica l
associations, outweighed th e la t t e r interests.
Justice Harlan began his defense of the decision b y granting
that in some circumstances the First Amendment to the Constitution (Congress shall make no la w.., abridging the freedom
of speech, etc.) protects a ma n f ro m compelled disclosure o f
his associations. But, h e argued, th e rig h t to re sist in q u iry is
not an absolute one; i t must always be balanced against competing p riva te a n d p u b lic interests t h a t ma y b e a t stake i n
particular circumstances. I t is a rig h t that must not be judged
"abstractly". V ie we d " co n cre te ly" i n the lig h t o f the " wo rld wide p ro b le m" o f Co mmu n ism, t h e in d ivid u a l's in t e re st i n
p riva cy is over-balanced b y th e government's rig h t o f se lfpreservation, —
the
u l t i m a t
e
v a
l u
e
o
f
a
n
y
s
o
c
REASONS A N D RULI NG S
4
2
5
put it, citin g an e a rlie r decision (
soning:
5
). 1.TThoe committee had a va lid legislative purpose in in ve stigating
tio n , a purpose ju st if ie d b y co n sis u mCommmu
a nr ist
i zin filtra
e
derations
o
f
"self-preservation",
since it was a " wid e ly acceptH a r l a n ' s
w" t h a a
t th e Co
red v ie e
- mmu n ist P a rt y wa s o u t t o d e stro y th e
United States government.
2. Aca d e mic freedom is a good thing, wh ich the Co u rt believes in protecting; but teachers can be interrogated ju st like
anyone else. Th is need not be an abridgment o f th e ir freedom
to teach o r o f th e ir students' freedom to learn.
3. Th e re was in fact no intention on HUA C's p a rt to control
what is taught in the universities. Ha rla n here cites testimony
of the ch a irma n o f HUA C in support o f h is interpretation o f
the committee's purposes as benign. The committee's purpose
was not p u re ly to expose Barenblatt o r others like him. There
is "no congressional power to expose for the sake of exposure",
Harlan agrees; b u t in q u iry into the motives o f the committee's
members is unnecessary since, even if those motives we re bad
(i.e., i f t h e members o f t h e co mmitte e we re o u t t o p u n ish
Communists o r f o rme r Communists wit h o u t a f a ir t ria l) t h a t
fact wo u ld not give the Supreme Co u rt any a u th o rity to in te rfere wit h the exercise o f the Legislature's powers. (No tice the
imp licit philosophical thesis that the committee's purposes and
its members' purposes a re t wo d iffe re n t things — here i s a
case wh e re the metaphysics o f n o min a lism mig h t have had a
salutary p o litica l effect !)
4. Fin a lly, th e re i s n o th in g t o in d ica te th a t th e in d ivid u a l
interests a t stake we re not subordinate to the state.
In t h e ir dissent f ro m th e ma jo rit y opinion, Justices Bla ck,
Douglas and Wa rre n offer a line of argument that strikes me as
not o n ly correct and powerful, b u t beautiful. (Is it fa ir to crit icize an argument for its ugliness, o r to praise one as I have ju st
done ?) Though he disagrees wit h the ve ry idea o f "balancing"
First Ame n d me n t rig h t s a g a in st o t h e r considerations, B la c k
says that it is cle a r that if balancing is to be done then much
more t h a n Barenblatt's personal in te re sts mu s t b e we ig h e d
against the interests of the state. It is the interests of the people
426
A
.
ZWE I G
as a whole, n o t ju st those o f Barenblatt, th a t should be considered — the people's interest in freedom, i n t h e ir a b ilit y to
jo in organizations and even to make p o litica l mistakes with o u t
fear o f being penalized f o r th in kin g f o r themselves. I t is th e
right o f the people to e rr p o lit ica lly tha t gives the nation it s
strength. I f people are a llo we d to hear, consider, and even to
accept Communist arguments, t h e y w i l l e ve n tu a lly a rrive a t
their own personal conviction of the worthlessness o f those arguments. The Constitution assumes th a t people have common
sense that enables them to withstand erroneous ideas. The idea
of abridging First Amendment freedoms in order to "preserve"
the co u n try is confused precisely because wh a t one wants to
preserve wo u ld n o lo n g e r be there t o be preserved. I f those
rights are denied, the United States is no longer a free nation.
The idea that national security depends on the power to punish
people fo r thoughts, speech, associations, is itse lf incompatible
with the Constitution.
Black also challenges the ma jo rity's interpretation of HUAC's
aims. Th e committee's purpose, h e argues, is p u re ly ju d icia l,
not legislative: i t aims to b rin g witnesses to t ria l and punishment, an old and vicio u s so rt o f punishment wh ich used to be
practiced i n th e f o rm o f p illo ry, ostracism, a n d exposure t o
public hatred. B la ck cite s a n e a rlie r a ctio n o f H U A C wh ich
had been voided b y the Co u rt as a b ill o f attainder. (Th e re levance o f this is that it supports his cla im about the p u n itive
character o f H U A C inquiries). A n yo n e cart see th a t HUA C's
reason fo r existence is exposure and punishment, write s Black.
The larger question at issue is not simp ly the limit s of congressional powers o f investigation vis à vis the rig h t to refuse disclosure; i t is, u ltima te ly, wh e th e r th e Un ite d States w i l l t r y
fu tile ly t o preserve d e mo cra cy b y adopting to ta lita ria n me thods.
Wh a t are we to make o f the disagreements between Ha rla n
and Black ? Wh a t sorts of criticisms and defenses are possible ?
Both ju stifica tio n s in clu d e appeals t o ce rta in e mp irica l co n siderations a n d these, I suppose, co u ld be challenged o r defended on the basis o f evidence o r la ck o f evidence. I t is n o t
immediately obvious, e.g., th a t academic freedom and freedom
REASONS A N D RULI NG S
4
2
7
of association must be conducive to th e nation's strength; in deed we ma y have serious reservations about this kin d o f defense o f c i v i l lib e rtie s. I t wo u ld b e possible t o question th e
wisdom of Black's argument as we ll as its evidential basis. One
might also feel that, whether or not Black's claim is e mp irica lly
warranted, i t is an important consideration and one wh ich the
ma jo rity seems simp ly to ignore. Wa s it true that HUAC's p u rpose wa s harrassment, a s th e min o rit y o p in io n held, o r wa s
the Chairman's wo rd to be trusted, as Ha rla n believed ? Black
points t o other HUA C actions in o rd e r to discredit the Ch a irman's assurances co n ce rn in g t h e Co mmitte e 's le g itima te le gislative aims. Wh a t sh a ll we sa y o f a judge wh o takes th e
word of a HUA C chairman as obviously tru stwo rth y ? Is there
not an e rro r in judgment here (
1expose
3
a n d p u n ish is b la ta n tly o b vio u s t o anyone wh o has
). T h its
followed
e career. No significant legislation has ever emerged
from
its
"
le
Yet Ha rla n does not take
c o m m gi isla
t ttive
e investigations".
e ' s
ithisna s td e cisive
e n o rt e ve
i n ore le va n t in deciding wh a t the co mn
mittee's
purpose is. The question o f "the committee's purpose"
is
t cru cia l t oo the arguments, and one mig h t wish f o r some in dependent, mechanical w a y o f deciding wh a t i t is. B u t there
is o b vio u sly a disagreement as t o wh a t is to count as imp o rtant in determinations o f purpose. Th e evaluation is n o t one
which can be made b y simp ly applying crite ria and rules. The
craving f o r ''something independent" t o wh ich th is ju d g me n t
can be tie d is understandable and perhaps laudable — " I feel
in m y bones th a t the Chairman is ly in g " is n o substitute f o r
evidence. But in the fin a l analysis a decision as to his cre d ib ilit y and as to HUAC's aims must be made, a decision wh ich can
be assessed as naive o r wise. We can point to the naiveté o f
accepting the Chairman's o wn estimate of his committee's p u rpose, b u t th is ma y o r ma y n o t succeed. Wi t h Ha rla n and the
ma jo rity i t p re su ma b ly fa ile d . I d o n o t k n o w wh e t h e r t o
describe the fa ilu re simp ly as in se n sivity in the discerning o f
motives, o r as indifference to the e vils o f p o litica l repression.
It seems t o me t h a t Ha rla n 's l a c k o f co n ce rn a b o u t t h e
general effect o f the Court's ru lin g on the exercise o f freedom
of p o litica l association supports th e la t t e r alternative: i t is a
428
A
.
ZWE I G
defect n o t o f lo g ic o r o f in su fficie n t e mp irica l evidence b u t
of sensitivity. Ha rla n and the ma jo rit y e ith e r fa ile d to notice
the consequences wh ich Black points out (an u n like ly explanation sin ce these me n mu st s it a n d discuss t h e ir ru lin g s a n d
arguments before issuing them) o r th e y min imize d th e ir significance. Perhaps t h e y h a d n e ve r f e lt threatened b y f e a r o f
exposure, f e a r o f lo sin g one's jo b because o f ra d ica l vie ws.
Such fears mu st n o t seem imp o rta n t to them, wh e n balanced
against a " th re a t t o national se cu rity" . Th e ma jo rit y o p in io n
sees Barenblatt as a n in d ivid u a l obstructing Legislative P u rposes, n o t as Everyman o r Kafka's K. His refusal to submit to
the interrogation is n o t vie we d as courageous, principled, o r
mo ra lly admirable; th e loss o f h is freedoms is n o t seen as a
terrible thing. (I a m reminded o f a great physicist, e xtre me ly
enthusiastic about the development of nuclear reactors to supp ly needed e le ctricity, wh o re ce n tly conceded in a discussion
that a f e w wo rke rs wo u ld d ie p re ma tu re ly o f over-exposure
to ra d ia tio n b u t wh o s a w t h is a s unimportant, t h e p rice o f
technological progress). Wh a t shall we say of an argument that
underplays the disagreable consequences o f a decision ? I t is
a bad argument; it should not have been accepted. But its defect
is perhaps clo se r t o th a t o f an unperceptive translation o r a
piece o f had music crit icism than to tha t o f bad lo g ic o r bad
science. There is a fa ilu re to appreciate something that ought
to be appreciated, a fa ilu re wh ich ma y re q u ire a so rt o f conversion rather than refutation. The scientist needs to be made
to see that a case o f leukemia is n o t negligible. The Supreme
Court ju stice mu st come t o recognize th a t a lif e o f perpetual
anxiety about one's possible p o litica l transgressions is n o t a
good life , and th a t a nation wit h ma n y such live s among it s
members i s sick. B u t th e k in d o f fa ilu re i n ju d g me n t (o r in
sensibility) o f wh ich I have been t a lkin g ma y n o t a lwa ys be
curable. If appeal to legal rules and evidence is in principle undecisive, s o t o o i s fist-shaking. (B u t does i t ma ke sense t o
reason with someone who hears nothing important in the Missa
Solemnis?)
I do n o t wa n t to maintain that philosophers wh o lo ve lo g ic
and rational decision procedures a re a ll wrong. We ce rta in ly
REASONS A N D RULI NG S
4
2
9
can examine the arguments I have outlined f ro m the p o in t o f
vie w of a logician or that of an empirical scientist. I t may even
be useful t o do so: we d o n o t wa n t o u r friends t o be caught
with t h e ir mid d le s undistributed o r t h e ir hypotheses disconfirmed. I n the case before us, i t wo u ld be n ice if the min o rit y
arguments d id not contain so ma n y tenuous e mp irica l claims.
For example, a s I suggested e a rlie r, I ca n ima g in e someone
challenging t h e p ro p o sitio n t h a t Firs t Ame n d me n t freedoms
actually are necessary to the country's strength, as the min o rity.
opinion asserts; n o r is it obvious that the freedoms in question
were a n y great p a rt o f wh a t H U A C and th e ma jo rit y o f the
Court we re a n xio u s t o preserve, wh e n t h e y sp o ke o f t h e
nation's rig h t o f self-preservation (so that it wo u ld be e mp irica lly false t o sa y th a t th e investigation o f Communists wa s
meant to preserve a nation in wh ich c iv il libe rties are guaranteed). I t also co u ld be argued that the prediction th a t people
will come t o see th e worthlessness o f Co mmu n ist arguments
if th e y are g ive n a chance to embrace th e m is e ith e r too optimistic o r too pessimistic, depending o n one's p o in t o f vie w.
It is not clear, a t any rate, that any careful e mp irica l research
supported this defense of the "freedom to e rr" . (A re the ideals
and arguments f o r lib e ra l democracy fated t o be accepted ?)
Furthermore, an expert on Constitutional interpretation mig h t
challenge the wa y in wh ich the min o rit y has read th a t document. Ne ith e r side can cla im t o be a me re " Do lme tch " i n it s
interpretation o f the Constitution as sanctioning o r forbidding
the "balancing" o f c iv il liberties wit h other national interests.
These critica l questions are not negligible. Wh a t I have trie d
to suggest is me re ly that they do not come close to exhausting
the ma n y considerations that ma y le g itima te ly be raised in an
appraisal o f ju d icia l arguments.
Un ive rsity of Oregon
NOTES
(I) Th e p u n is int ent ional. M y p o in t obv ious ly owes ev ery t hing t o J ohn
Wis dom.
(
2
)
T
h
e
J
u
d
i
c
i
430
A
.
ZWE I G
(I) Fro m Fo u r Quartets , "E as t Cok er".
(
Professor
4
Joseph R. G rodin f o r teac hing nie wh a t lit t le I k n o w about Cons titutional
Law
)
(3
5
(')
6 Compare I mmanuel KANT'S remark s o n t h e f ac ult y o f "ju d g me n t ", i n
the)0 Crit iq u e o f Pure Reason, A 133, B 173, ff.
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