By Bruce Chapman
This article was first published in the Spring 2005 issue of Nexus.
It is generally thought that a rational decision is a decision based on reasons. In this respect one would have thought law and legal decision-making was paradigmatically rational. Advocates attempt to persuade judges with reasoned arguments, and judges typically offer reasons for the decisions they make in response to those arguments. Indeed, the authority of a judicial outcome depends in part on the quality of the reasons that are offered in support of it. Weak reasoning will undermine the authority of a judicial outcome and leave it exposed to the indignity of being distinguished into oblivion, if not completely overruled or reversed.
But what if all the reasons offered by the individual judges, although individually sound, together add up to something that does not support the outcome? It is a familiar enough problem that judges may have different reasons for supporting some decision. As a consequence we may have majority support for some outcome, albeit only for a mere plurality of reasons. However less familiar and less discussed is the situation where the reasons supported by a majority (not just a plurality) of judges favour one outcome and yet a majority of the judges vote that some other outcome should prevail. This is the stuff of outright contradiction. Can a legal decision still be construed as rational in the face of such a contradiction?
Consider the following simple example. On a three member court considering a breach of contract case, Judge A believes that there was a well-formed contract, but that it was not breached. So Judge A votes for no liability. Judge B thinks that the defendant's behaviour in the case does amount to breach of such a contract, but that the contract was not well-formed. So he too would vote for no liability. Finally, Judge C votes for liability because it is her view that the contract was both well-formed and was breached. So a majority of the court believes both that there was a contract and that it was breached. Yet a majority of the court would vote for no liability because there is no breach of contract. This seems odd.
How should a court proceed in the face of such a contradiction? Should it follow its majority view of the reasons (contract and breach) or its majority view of the outcome (no breach of contract)? It is tempting to think that the court should let the reasons themselves determine the outcome (breach of contract). Otherwise there is a danger of arbitrary results - in at least the following way: the results across different cases might be entirely dependent on the order in which they arise.
Suppose, for example, that the only issue to be decided was whether, on facts similar to our hypothetical, there was a contract (i.e., there was no breach issue). Then the majority view would be that there was a contract. Suppose next that a case arose where the only issue to be decided was (again on facts similar to our hypothetical) whether there was breach of such a contract. Again, a majority would determine that there was. Could a court now face the original hypothetical case, which raises both issues at once, and now, given what it has already decided in the single-issue cases, conclude that there was no breach of contract? This is what the court might be tempted to conclude without considering either the precedents of the prior decisions or its majority reasoning on the underlying issues. But how would this be rational? And if it confronted the original case, which raised both issues, first, and decided it (on the basis of a vote on the outcome, not the reasons) as no breach of contract, how could it possibly decide the subsequent single-issue cases on like facts in the same way as it did before, namely as a case where there was a contract and a case where there was a breach. For the sake of overall consistency, one of these case results would have to change, a change that would be determined by the arbitrary order in which the different cases arose.
Of course, it will be said that the very idea of legal precedent exposes the court to the risk of making order-dependent rather than reason-dependent decisions. This is true in a sense, but the integration of substantive reasons with the normative requirements of inter-temporal consistency does not require that decisions be so arbitrarily dependent upon the decision path. It is possible to construct an account of legal rationality that is both responsive to the substantive reasons that argue for a given result in a case and which allows for formal consistency with the decisions one has already made. Interestingly, it is the particularly legal notion of defeasibility, and of defeasible legal rules, which makes this possible. However, further discussion of this important claim must be left for another occasion.
