The Reasoning Game: Some Pragmatic Suggestion

DOIhttp://doi.org/10.1111/1468-2230.00143
Date01 March 1998
Published date01 March 1998
AuthorAllan C. Hutchinson
REVIEW ARTICLE
The Reasoning Game: Some Pragmatic Suggestions
Allan C. Hutchinson*
Cass Sunstein, Legal Reasoning And Political Conflict, New York: Oxford
University Press, 1996, 220 pp, hb $25.00.
It seems like whole libraries or, at least, large tracts of them, have been written about
the mysterious concept and practice of legal reasoning. Although there has been
much toing-and-froing around the matter, the common wisdom still prevails that, as
Chief Justice Coke put it in the 17th century, there is an ‘artificial Reason and
Judgment of Law which requires long Study and Experience before a Man can attain
to the Cognizance of it.’ By this, it is usually meant that law has its own special form
of reasoning that distinguishes it in some important way from other disciplines and
other forms of reasoning (economic, scientific, logical, political, sociological, etc).
Like all reasoning, legal reasoning is a process of argumentation by which it is
possible to infer or move from one already accepted proposition to another that has
yet to be accepted. Of course, everyone agrees that legal reasoning is distinctive to
the extent that it works upon a particular set of materials (cases and statutes), is
framed in a professional jargon (eg, stare decisis and obiter dicta), and is engaged in
by a restricted community of professionals (lawyers and judges). However, that is as
far as any agreement goes. As central as it is to the whole legal enterprise, the precise
identity or nature of legal reasoning remains elusive; it defies simple classification
or easy analysis. As such, much contemporary jurisprudence remains fixated with
clarifying and justifying the operation and status of legal reasoning.
While most lawyers and judges continue to insist that ‘legal reasoning has a
logic of its own .. . [whose] structure fits it to give meaning to ambiguity,’1I
maintain that such a formalistic position is both untenable and unnecessary. Shorn
of its legal nomenclature and doctrinal dressing, legal reasoning is simply a general
and non-specific style of reasoning which lawyers have colonised and at which
judges have become particularly adept; the claim that legal reasoning is special not
only in its formal attributes, but also in its ability to arrive at substantively better
and worse answers cannot be sustained. As a normative exercise, it is not an
empirical matter of truth or falsity: legal reasoning is less a demonstration of
logical necessity and more a practice of human justification. More particularly,
legal reasoning is a mode of playful and rhetorical activity. This insight has been
latched upon as the basis of a neo-pragmatic revival in jurisprudence. However, as
exemplified in the esteemed work of Cass Sunstein, these efforts to construe law
and adjudication as a practical activity flatter, but only to disappoint: the new non-
formalist packaging belies the old formalist commitment. In contrast, I will offer a
different understanding of legal reasoning that is thoroughly pragmatic in ambition
ßThe Modern Law Review Limited 1998 (MLR 61:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 263
* Osgoode Hall Law School, York University, Toronto. I am grateful to Remy G. Boghossian and Jim
Smith for their research and assistance.
1 E. H. Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949) 73.
and elaboration. I insist that adjudication, like much of life itself, is best understood
as a playful attempt by judges to engage in a language game that seeks to regulate
social life. By depicting adjudication as a non-formalist game of infinite propor-
tions, my account seeks to explain and evaluate adjudication in such a way that it
captures its sense as a peculiar professional practice (in which it stands as
something of its own thing) and as a profoundly political undertaking (in which it
is organically related to the larger context of society). In this way, it might be
possible to realise that law is not so much a site that is located aside or away from
ordinary life and that adjudication is not so much an activity that can be
appreciated as separate from ordinary living: law is a part of, not apart from, life
and adjudication represents one site and way of playing the game of life.2
The essay is divided into six parts. First, I introduce the basic orientation of
Sunstein’s pragmatic account of law and his emphasis on analogical reasoning and
incompletely theorised agreements as the keys to legal casuistry. In the next three
short sections, I criticise the limitations of Sunstein’s account – analogical
reasoning hides rather than does away with the historical values and social ideas
that energise the law’s operation; incompletely theorised agreements are not so
much under-theorised as under-agreed-to to do the work asked of them; and the
fixed precedential points that anchor legal reasoning allow much more movement
than suggested. The last two sections offer a deconstructive account of ‘play’ that
better captures the general practice of legal reasoning at large. Resisting the
tendency to transcendentalise or divinise notions like ‘play’ by turning them into
metaphysical entities, I treat legal reasoning as playful moves in a pragmatic game
and trace the implications of this non-formalist approach for the practical
performance and theoretical justification of the judicial craft. In short, I want to
insist that, in law’s language game, there is nothing to ground play, but more play:
there is no final or privileged way to play law’s game that explains and grounds all
others that is not itself a game.
The pragmatic gambit
Eschewing the hubristic aspirations of natural lawyers and other formalists, a new
breed of pragmatists have sought to re-valorise law and adjudication as a
professional practice in which practical people pursue practical ends through
practical means.3As a ‘back to basics’ movement, legal neo-pragmatism is not so
much a philosophy or methodology, but more a way of professional life: it nurtures
an existential ethic of inquiry rather than inculcates a catechism of substantive
outcomes. By treating truth and correctness as experiential and experimental rather
than apodictic and apocalyptic, adjudication comes to be understood as involving
nurtured prudence, not revealed knowledge. While law remains a noble calling
under such a perspective, its practitioners are more artisans than artists and more
technicians than grand theorists; Cardozo, Holmes, Learned Hand and Llewellyn
are their heroes. Extolling the practical virtues of intellectual self-discipline and
traditional craft, legal pragmatists conceive of law as being much more playful and
practice-based than other contemporary jurists. However, while appreciating that
2 For a fuller account of this ambitious claim, see A. Hutchinson, It’s All in the Game: A Non-
Foundational Account of Law, Politics and Adjudication (forthcoming, 1998).
3 For a general survey, see M. Brint and W. Weaver (eds), Pragmatism in Law and Society (Boulder:
Westview Press, 1991); and ‘Symposium: The Renaissance of Pragmatism in American Legal
Thought’ (1990) 63 S Cal LRev 1569.
The Modern Law Review [Vol. 61
264 ßThe Modern Law Review Limited 1998

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