Ratiocination not Rationalisation

Mind Association

Ratiocination not RationalisationAuthor(s): Roy StoneSource: Mind, New Series, Vol. 74, No. 296 (Oct., 1965), pp. 463-482Published by: Oxford University Press on behalf of the Mind AssociationStable URL: http://www.jstor.org/stable/2251669 .

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VOL. LXXIV. No. 296] [October, 1965

A QUARTERLY REVIEW OF

PSYCHOLOGY AND PHILOSOPHY

I.-RATIOCINATION NOT RATIONALISATION

BY Roy STONE

Introductory

IT is a patradox to say that legal argument is heterodox. There is a substantial connection between philosophy and law which recent philosophers have remarked. Apart from those mentioned by Mr. Summers in MIND, April 1963, others have reminded us of this useful comparison. Wittgenstein, as reported by G. E. Moore, compared judgement in law to aesthetics and ethics, and in the Remarks on the Foundations of Mathematics he reminds us of the inexorability of mathematics which can be compared and contrasted with that of the law and judges; and how following a rule of mathematics is like following a rule or a case in law. In a recent case a judge noticed that the application of the rules of the Supreme Court was inexorable. (See Thorpe v. Thorpe 1963 WLR). Waismann also reminds us that judges cannot be cal- culating machines; in his essay 'How I see Philosophy', he advances the argument that philosophical argument is not entirely deductive and not entirely inductive, that there is a medial argument that is analogical in structure and contains elements of judgement such as lawyers use. His papers 'Analytic-Syn- thetic ' also contain remarks to this effect, and further point out that much knowledge is neither entirely a priori nor entirely empirical. There is here also an argument about family resemblances and universals which compares with Wittgenstein's (paras. 66 to 74, Philosophical Investigations) and which is relevant to the peculiarity of legal knowledge. Ryle in Dilemmas offers us an informal logic which can be compared to what Coke called the artificial reason of the law and what Bacon called the perfect

(D Thomas Nelson and Sons Ltd 1965

31 463



464 R. STONE:

reason of the law. Bacon sets it out in his Preface to the Maxims of the Law (vol. 7, Ellis and Spedding, Works of Bacon). Austin in his lecture, ' A Plea for Excuses ' (reprinted in Collected Papers) uses the law as a second source book in his programme of linguistic analysis.

The connection here described was not unknown even to the ancient world: Plato in the Republic and the Laws, Aristotle in the Ethics and Politics, and Cicero in De Legibus and the Republic have earmarked it. Spinoza, Leibniz, and Kant all noticed it. This connection has perhaps been made in the strongest form by Wisdom in his articles " Gods " and " Philosophy, Metaphysics and Psychoanalysis ", where he argues that the method of legal argument has a logic of its own, and again a logic that is at the bottom of both deduction and induction. In short, legal argument and philosophical argument are one.

The paradox consists in this. If the legal argument can be used as a model for philosophical argument, and if the argument of the law is peculiar, idiosyncratic and heterodox as Austin has pointed out, how can philosophy and law be the same'? My thesis is that their differences can be reconciled if the differences in the ends of philosophy and of law are remembered, and the peculiar requirements of the law are remarked. The requirement for a decision, the hierarchy of authorities, the force of precedent and the special use of language in judicial decisions should be recalled.

The need to reconcile and remember these two sets of arguments arises not merely in the discussion of philosophy by philosophers, not only in the discussion of law by lawyers, but also in the discussion of the philosophy of law, that is, jurisprudence, by jurisprudents, and again in the discussion of philosophy by lawyers and of law by philosophers.

The paradigm case of a confusion created by ignoring this occurs in the discussion between Professor White and Dr. Glan- ville Williams concerning recklessness, carelessness and negligence, in the Modern Law Review for 1962. A similar confusion is dealt with by Wisdom in his article " Philosophy, Metaphysics and Psychoanalysis ", where he denies the claim set up by Dr. Williams in his series of articles " Language and the Law " that legal judgements are merely verbal, and that legal discussion is only about questions of words. Wisdom's answer is that the application of legal concepts like 'negligence' is not merely the pinning on of labels, and that the distinctions represented by different verbal uses reflect different ways of- looking at 'the facts '.



RATIOCINATION NOT RATIONALISATION 465

Here I shall make some remarks upon these discussions to illustrate the point and incidentally to introduce my own thesis. I shall discuss the nature of the judical process, remarking that the ratiocination of the law is not rationalisation, or haruspication or scry or sortilege or merely prediction, or having a stab at a football pool, but contains well known and analysable functions such asfollowing and not following, ap'plying, reconciling, distinguishing, overruling, doubting and criticising. I shall argue that legal knowledge, when contrasted and compared wi-th scientific and with mathematical knowledge, can be seen to be different from either.

Law not English

In the controversy between White and Williams, these two dis- putants have been nothing if not quixotic, in that while both of them are tilting and jousting like champions in a trial by battle, they are neither of them tilting at the other however much they pretend. The parties have not joined issue either by traverse or by confession and avoidance.

White avers that " careless " and " reckless " when subjected to rigorous analysis do not yield the distinctions and differences that lawyers find and do yield distinctions and differences that lawyers do not find. Like Balfour in the following situation recalled by Maitland, White is talking English, not law:

" Texts, however, I will have. My first is taken from Mr. Balfour. Lately in the House of Commons the Prime Minister spoke of Trade Unions as corporations. Perhaps, for he is an accomplished debater, he anticipated an interruption. At any rate, a distinguished lawyer on the opposition benches interrupted him with 'The Trade Unions are not corporations'. 'I know that, I am talking Englishnot law.' A long story was packed into that admirable reply;."'

Williams, on the other hand, and this surprisingly, for he does not reck the method, is following closely Austin's view that the second source book will be the law. " Our second source book will naturally be the law. This will provide us with an immense misceLlany of untoward cases and also with a useful list of recognised pleas, together with a good deal of actual analysis of both. No one who tries this resource will long be in doubt, I think, that the common law, and in particular the law of tort, is

1 Maitland, Selected Essay8 at p. 335.



466 R. STONE:

the richest storehouse. Crime and contract 'contribute some special additions of their own but tort is altogether more compre- hensive and more flexible. But even here and still more with so old and hardened a branch of the law as crime, much caution is needed with the arguments of Counsel and the dicta or decisions of judges; acute though these are, it has always to be remembered that in legal cases:

(1) There is the overriding requirement that a decision be reached, and a relatively black or white decision-guilty or not guilty-for the plaintiff or the defendant.

(2) There is the general requirement that the charge or action and the pleadings be brouLght under one or another of the heads and procedures that have come in the course of history to be accepted by the Courts. These, though fairly numerous, are still few and stereotyped in comparison with the accusations and de- fences of daily life. Moreover contentions of many kinds are beneath the law, as too trivial, or outside it, as too purely moral, as, for example, inconsiderateness.

(3) There is the general requirement that we argue from and abide by precedents. The value of this in law is unquestionable but it can certainly lead to distortions of ordinary beliefs and expressions.

For such reasons as these, obviously closely connected and stemming from the nature and function of the law, practising lawyers and jurists are by no means so careful as they might be to give to our ordinary expressions their ordinary meanings and applications. There is special pleading and evasion, stretching and straitjacketing, besides the invention of technical terms, or technical senses for common terms. Nevertheless, it is a per- petual and salutary surprise to discover how much is to be learned from the law, and it is to be added that if a distinction drawn is a sound one, even though not yet recognised in law, a lawyer can be relied upon to take note of it, for it may be danger- ous not to-if he does not his opponent may ".

Here we have it then. Legal meanings are not ordinary meanings; or, if we prefer it, legal use or usage is not necessarily ordinary usage. It is curious, heterodox, idiosyncratic, peculiar. The doctrine of precedents, the hierarchy of authority, the curious attachment in much of the law to sticking to the method of definitio per differentiam, the requirement that judges must come to a decision and a relatjvely black and white decision, differ- entiate completely even the sharpened awareness of words and so concepts. A few cases outside the disputed carelessness, recklessness and negligence may illustrate this point sharply.




In Re Ball, Hand v. Ball, Roxburgh J. decided that the word 'Dependants' when used in a will simpliciter had no meaning, so that a gift to the Testator's dependants failed and the estate went to the Testator's widow on intestacy, a person expressly excluded by the will. Such a decision would make even a logical positivist smile. What a linguistic analyst would do but weep I cannot imagine, especially when he reads that Roxburgh J. ignored a dictionary definition.

Then there is the case of Perrin v. Morgan, where Viscount Simon L. C. argued that the word ' money' could include both the real and personal property of which the deceased died possessed. Some of the late Lord Simon's remarks in his speech are apposite here to limit the suggestion that philosophy and jurisprudence are an attempt to shew the judge the way around the dictionary.

Consider the cross-examination reported in The Times in the recent case of Reg. v. Terry.

Dr. Patterson- cross-examined by Mr. Lawrence, Q.C.

Q. Diminished responsibility we will examine in a moment. Are you saying that this man at this time was insane?

A. Yes. Q. He was insane? A. Yes, in the medical sense. Q. Did he know that he was doing wrong? A. Yes. Q. Then, at any rate, it is quite clear from that he is not insane

from the legal point of view. A. That is true, yes.

(The Times, 26th March 1961).

Here Counsel is talking about legal insanity, the test for which has been laid down in the M'Naghten Rules and the cases inter- preting them. The witness is concerned, as he says, with medical insanity, and the jury in all this has to decide whether the evidence establishes insanity, insanity not in the ordinary everyday dictionary sense, or from what Dr. Johnson called the language of the port or the market-place, but according to the judge's directions on the law, that is the legal meaning or use of the word. To enable the jury to come to a decision the judge has to sum up the evidence and direct the jury as to matters of law. This he does, or as the learned editor of Russell on Crime suggests he should do, by explaining in terms the jury understand, the law on the matter. Now the jury, like Balfour, speak English not law, and the judge has to make what I call a logical translation. For



468 R. STONE:

the jury must decide, not according to the unsophisticated, dictionary, ordinary meaning of the word which " an enlightened, a highminded, a rightfeeling, a conscientious, a dispassionate, a sympathising, a contemplative jury " of one's fellow countrymen might have, nor yet according to the recondite, learned, subtle distinctions embodied in the Latin and Greek derivatives known to medical men, but according to that idiosyncratic, heterodox, peculiar legal definition. This translation can be made, and is made in most directions by judges to juries. My view is that such directions should not be equated with decisions of judges upon matters of law given in the form of judgements, as these latter do not need to convince or explain. Concepts of negligence, recklessness, carelessness, murder, etc., propounded in the opinions of their lordships, or, for example, Lord RadcEliffe's talk of the " port area " in The Aello 1961 A.C., do not call for the same argumentation as directions to the jury. Why judges apply words like " criminal " "culpable ", and " wicked " to negligence seems to me clearly explained by the fact that they are attempting to explain to a jury, in terms the latter can understand, eccentric and erudite and recondite legal concepts. That this translation can be done I have no doubt, though Williams thinks that in the case of insanity it could involve the judge in impossible metaphysical questions.1

The fact is that the same questions have to be answered in some sense by a psychiatrist, and Freud shews us the way to make such translations when dealing with a paranoiac. " To subject the warped reasoning of the mentally afflicted to the same critical examination as if they were sane " the psychiatrist, like the judge, has to translate from the delusions of the paranoiac, and in another context from the dreams of a patient into the language of his art. For when this happens, " we have only to follow our usual psycho-analytic technique (to strip his sentence of its nega- tive forms, to take his example as being the actual thing, or his quotation or gloss as being the original source) and we find our- selves in possession of what we are looking for-a translation of the paranoiac mode of expression into the normal one " (Freud). These arethe very translations that a jury has to make when all the evidence is in, when all the law has been directed to them, and they have to bring in the verdict, sane or insane. I do not say a lawyer has to make the same translation, which may make one read black as white, high as low, rich as poor, etc., but there are some shifts of meaning to be made. Of course much of this is done by presenting cases where there has been insanity and

1 In Criminal Law.




comparing them with cases where there has not and then contrasting the case before the court with other cases like and unlike but all relevant, cases that are actual cases in the books or in the experience of the judge or Counsel, and hypothetical cases- 'What would be the position if ... ? ' ' I will put you the case that. . .', ' Suppose your client to be. . .'.

There is another point which White makes. He cites Salmond's Jurisprudence in a hurt tone, for he thinks that a book on jurisprudence, and Salmond in particular, should explain and analyse not the legal sense or use of words like 'negligence', ' carelessness ' and ' recklessness ', but the ordinary meaning of these words, by studying the ordinary use. Now I do not think of jurisprudence as consisting of an activity which sharpens our awareness of ordinary usage. It is an activity about law and is concerned with explaining legal concepts and uses and method in the same ways as the philosophy of science explains such notions as ' simplicity ', ' causation ', ' law of nature ', not in any popular sense but as used in physics; and much in the same way as the philosopher of mathematics is concerned with the concept of ' number ' in a sense different from that of the word in ' Tell me not in mournful numbers . ." or in the phrase, " his number is up ".

There is a point at which these special disciplines called the Philosophy of Science or of Mathematics or of Law may merge into philosophy generally, but the point is not here but in the field of epistemology. It is well to remember, then, that the history of law has been concerned with the movement from " the com- -mon word exact without vulgarity " to " the formal word precise but not pedantic ", and we do well also to recall that " the formal word precise " may have a logic of its own. This is so in the case of ' seisin ', as Maitland shewed us long ago. The divorce between the legal meaning of ' adultery ' and the apparent ordinary usage is illustrated in the judgement, Barnacle v. Barnacle 1948, p. 257.

White in reply to Williams's objection " You are talking English not Law" answers, (1) that what jurisprudence seeks to do is too large a question in this context. Well, too large or too deep, it has been raised and the oblique cut and run answer that White gives in his second answer (2), which we shall discuss later, is not good enough.

Let me raise the question and give some of the arguments. Within the lawyer's " scanty plot of ground " words are used. Some words have developed what the late Lord Asquith of Bishopstone described as the hardened lineaments, of a rule of law. Such are 'seisin', ' murder ', 'adultery', and also



470 R. STONE:

'carelessness', 'recklessness ' and ' intention'. Some words are entering the lawyer's narrow cell in a way which recalls Dr. Johnson's complaint about the difficulties of writing the great dictionary, " While some words are budding others are falling away." A simple case is that of ' dependants '. Once a word is judicially defined, once it has been defined or considered.-many times by succeeding judges in different ages, the contours of the word harden. It is a complete misunderstanding of the nature of judicial analysis to suggest that because dictionaries are used by lawyers arguing cases and judges deciding cases, that the meaning of all legal words, that all legal concepts can be or can be helped to be ascertained from ordinary use or usage. The role of the word in the language game is determined by the rules of the game, and this goes for the rules of the legal game. Just as we learn in doing mathematics how to use imaginary numbers or aleph nought, or in playing cricket to use the word 'googly' or 'Bosie ', or from the rules of chess what is mate, so too in law we learn that adultery is not looking upon a woman-with lust in his heart, though this will do for Christ, or that it is not true that it is not adultery if it happened before dark as someone once suggested to the King's Proctor. One does not necessarily obtain any en- hanced meaning or better understanding of ' googly ' by reading in the Oxford Dictionary " an off-break ball bowled with a leg break action."

Jurisprudence, it seems to me, makes explicit the role that certain rules play in the legal game. Where the rule is obscure, where a study of all the cases still yields a doubt, the lawyer may pray in aid ordinary use and dictionary definitions to chart the problem but not to determine the answer. Legal riddles are settled by comparing and contrasting instances, cases, hypothetical situations which fit and square and those that clash and jar, until the cases, after reflection, produce what Wisdom calls a sharpened awareness, or what Lord Radcliffe in The Aello calls a conception of such and such a word. "Is this negligence?" is answered in seeing that the presence of a snail in a ginger beer bottle is like the spark from an engine travelling along the road, in railwayman's parlance, on the London and South West Railway line.... The problem is deep as well as wide, but it needs, if not an answer, at least an argued and arguable specific attitude. It is this point that Dummett, in his review of Wittgenstein's Foundations of Mathematics, raises in its widest context, that of epistemology:

" I think that there is no ground for Wittgenstein's segregation of philosophy from mathematics, but that this springs only from a




general tendency of his to regard discourse as split up into a number of distinct islands with no communication between them, that is, statements of natural science, of philosophy, of mathematics, of religion " (Philosophical Review, 1952, p. 326). It is the job of philosophy not merely to discover the logic of the different disciplines but also to perform the logical transformations or.translation from one game to the other.

Is there one language game or are there many? In so far as the legal game, the mathematical game and, say, cricket, are disparate, it seems to me that the jurisprudent, the philosopher of mathematics and the philosopher of cricket are concerned to explain the peculiarities of the subject of their study: in the case of law, by presenting the placita legum, as Bacon called them, in the form of leges legum, the laws of law.

It is quite true, perhaps trite to say, that when that " marvel- lous calculus of rights projected upon the plane of time " which is the law of England is expounded by judges and explained by the jurisprudent, both judge and jurisprudent use a pastiche and a melange of ordinary and technical usage, but the critical tones we use both to censure and to praise do differ. Hart properly pointed out in his essay " The Ascription of Responsibility and Rights " that legal concepts are defeasible, that is to say, they serve for a time, unless or until some excuse or defence or evidence can be pleaded. He takes as an example the concept of ' rights ', which he calls ' ascriptive ' to mark a feature distin- guishable from the other elements, descriptive or prescriptive, which make up the legal calculus. He also makes a distinction between the language of the law, that is of judges and lawyers, and the language of legal criticism. That judgements and jurisprudence use ordinary English to describe legal concepts is in- escapable. But the English used is a meta-language. It is just as much a meta-language as the language which Church in his Introduction to Mathematical Logic, p. 47, para. 7, uses to describe the formalised language of mathematical logic. Mistakes can be made both in the formalised language and in ordinary language, the meta-language which we use to set up the formalised language. When discussing recklessness and carelessness White is using the meta-language in criticising constituents of the formalised language. Williams, when he uses ' realisation ', is, if White is right, making a mistake in the meta-language. The discussion between White and Williams not,only points this moral but adorns this tale.

When White attempts to analyse legal concepts along this line of linguistic philosophy, he only shews how legal use differs from



472 R. STONE:

ordinary use. When he discusses Williams's use of ' realisation' he properly shews that part of the descriptive language of jurisprudential explanation needs to be looked at. It is as if a gram- marian criticised a mathematician for saying two and two makes, instead of ' make', four. I do not suppose that Williams would claim that the word 'realise', or any derivatives of it, have a special legal connotation and so belong to that second source book, being limited by its heterodoxy or idiosyncracy. If like' seisin ', however, the common word exact did become the formal word precise, he might and would claim that its special signification is both the special and the proper province of jurisprudential analysis.

This brings me to White's second point when he quotes Salmond. When White argues that Salmond partially succeeds in analysing a legal concept but misunderstands and mistakes ordinary usage on the occasion of his, Salmond's question, " Is the careless man the man who does not care?" he, White, is mistaken in the innuendo he puts into his description of the situation. It is in some sense true to say that when Salmond writes thus he is doing both: that is, he is successfully describing or explaining a technical legal concept, and he is misdescribing though he is not purporting to explain ordinary use. It may be unfortunate that this mistake is committed, but we cannot blame Salmond for failing to do something that he does not pretend to do. When Rembrandt painted the portrait of his mother he was not painting the portrait of the Rabbi. He cannot be blamed for this. When he painted himself he cannot be criticised for not doing a post-impressionist portrait. When jurisprudents describe what lawyers and judges do and think, they cannot be blamed or held to task or ridicule if they do not describe what the man on the Clapham omnibus might have said. When we analyse "what Tully thought and what Justinian, and what was Pufen- dorf's opinion ", we cannot be condemned for not describing it like Clarendon in his criticism of Ship money, " that as every stander-by was able to swear was not law. . . . But when they saw in a court of law . . . . apothegms of state urged as elements of law, judges as sharp-sighted as secretaries of state, and in the mysteries of state; judgement of law grounded upon matter of fact, of which there was neither inquiry or proof; and no reason given for the payment of the thirty shillings in question ".

There is a tendency in White, and it is present in Hart's article "The Ascription of Responsibilities and Rights ", to attribute idiosyncratic, heterodox and peculiar legal concepts to mistakes




in or about ordinary usage; but this is to conflate the meta- language with the formalised language. Part of the task of jurisprudence, as I conceive it, is to delimit those areas of language that are legal and those that are not. If in the ordinary language of his description and explanation a jurisprudent makes a mistake in grammar or syntax or meaning or use and this affects his con- clusions by making them non s'equiturs or obscure or dubious or false, it is proper to point it out. This may be so where Williams might be said to have used ' realisation ' in an eccentric way and so made out a case for the illogicality which he attributes to White. But when it is a matter of law that is at issue, or a legal concept, when it is a matter of number, or functions or of a theorem in mathematics, it is then to the lawyer or mathematician that an appeal will best lie. We can agree with Whistler that " two and two to the mathematician will continue to make four, in spite of the whine of the amateur for three, or the cry of the critic for five ".

In 1779 Johnson castigates a poet for making 'genius' feminine and the poet explains that it is for a compliment to the Duchess of Devonshire. Johnson then says " Sir, you are giving a reason for it but that will not make it right. You may have a reason why two and two make five but they still make but four." Now was Johnson ' careless ' or ' reckless ' in using ' reason ' when he meant ' excuse'? Like Balfour, Johnson was taLking English not law.

Definitio e Similibus

Williams's rejoinder to White properly recalls that talking English is not talking law. However, I would like to raise the question whether the difference between ordinary language and law could not be better and more sufficiently maintained upon other grounds. Whether Williams has resiled from the position he argued in that series of articles entitled " Language and the Law ", when he now maintains the peculiarity, idiosyncrasy and heterodoxy of legal language, is not clear. He does harp back to some earlier views which can be found in recent, but now extinct, philosophising. He says that meaning is just meaning, and that there is some requirement for a one to one correspondence between words and meanings if ambiguity is to be avoided. Now this is reminiscent of Russell's talk in his lectures on Logical Atomism. Here Russell maintained that, once the world was split up into particulars wholly individuated and unique, and once



474 R. STONE:

words could be assigned to each particular or logical atom, a language could be constructed free of all vagueness and ambiguity. But even Russell admitted that words of our everyday language were too vague and too few to enable a one to one correspondence with word and meaning, or word and object, or word and concept, or word and atom. He saw that a Chinese ideograph may -have been more like this perfect language.

It is not so much, however, in the way that this requirement is expressed that we find objection, but rather in what we think lies behind the request for the requirement. Meaning is just meaning. Well, in a sense this is unobjectionable, except that if it is a tautology it says nothing. But when someone says meaning is just meaning, I am inclined to ask two questions. The first, " Is it?" And the second, " Why do you say so trite or tautologous a thing?" Here I think two matters lie hidden, matters which bear on jurisprudence generally. Meaning may just be meaning; it may also be the means of verification of a word. And once we see this we see before us a great deal of philosophising that we had thought to be behind us. Russell said in his lectures that because words are vague the natural languages could not be used as stand- ins to fill the emptiness of his symbolic language. There could not in practice be a one to one correspondence between the word and the atomic fact. The idea contained in Ramsey's statement that " Logic issues in tautologies, mathematics in identities, philosophy in definitions ", failed, and yielded in the later Witt- genstein the maxim, " Do not ask for the meaning, ask for the use ". It is from this view that I wish to criticise Williams's ieasons for concluding that the language of ordinary use and the language of legal use are not necessarily the same and where different should not be conflated.

One of the mistakes in philosophy, so Wittgenstein tells us, is the urge or compulsion for definition. Plato shows us how Socrates was seeking for definitions in the Dialogues. " What is justice, what is courage, whatis x?" This is a misleadingquestion and a demand that was never answered, because it could not be answered. Aristotle tried to meet the impossibility by suggesting that the use of examples, varied and multifarious, when compared and contrasted, yielded the essence of what was exemplified, that all things contain their own ends. " Aristotle saw the concrete particular and not the Platonic universal form as the independently existing substance "'1 In the next cited passages Wittgenstein points out the error of conflating word and object, word with

1 Renford Bambrough, Aristotle's Ugly Duckling, Listener, 4th October, 1962.




meaning, by showing that this induces us to think that words are merely proper names, and that the applying of words is merely the pinning on of labels or medals. He also re-examines 1 the question of universals in the context of family resemblances:

66. Consider for example the proceedings that we call ' games'. I mean board-games, card-games, ball-games, Olympic games, and so on. What is common tfo them all ?-Don't say: " There must be something common, or they would not be called ' games ' "-but look and see whether there is anything common to all.-For if you look at them you will not see something that is common to all, but siminlarities, relationships, and a whole series of them at that. To repeat: don't think, but look !- Look for example at board-games, with their multifarious relationships. Now pass to card-games; here you find many cor- respondences with the first group, but many features drop out, and others appear. When we pass next to ball-games, much that is common is retained, but much is lost.-Are they all " amus- ing " ? Compare chess with noughts and crosses. Or is there always winning and losing, or competition between players ? Think of patience. In ball games there is winning and losing; but when a child throws his ball at the wall and catches it again, this feature has disappeared. Look at the parts played by skill and luck; and at the difference between skill in chess and skill in tennis. Think now of games like ring-a-ring-a-roses; here is the element of amusement, but how many other characteristic features have disappeared ! And we can go through the many, many other groups of games in the same way, can see how similarities crop up and disappear.

And the result of this examination is: we see a complicated network of similarities overlapping and criss-crossing: sometimes overall similarities, sometimes similarities of detail. 67. I can think of no better expression to characterise these similarities than " family resemblances "; for the various resemblances between the members of a family: build, features, colour of eyes, gait, temperament, etc. overlap and criss-cross in the same way.-And I shall say: " games " form a family.

Williams points out, and properly, that legal concepts are complex. He says that it would be convenient in some, but not all, ways if the law developed special and unique words for each such complex, as 'conchneg' for reckless, much in the same way as psychology created its terms of art out of Greek words, ' paranoia ' 'schizophrenia', 'psychopath', to distinguish and re-classify conditions that had been cQyered by older terms like ' dementia '. To some extent the law has done this. There are many words in

'Accordingf to Renford Bambrough, 'Universals and Family Resem- blances' (P.A.S., 1960-61, p. 207), Wittgenstein solved the problem.



476 R. STONE:

the law which are, if not curious, then original. 'Seisin ', once a common word exact, has become a formal word precise; ' distress damage feasant ' is not often used in the market place; ' a descent cast tolls the entry' must be gibberish on the Clapham omnibus. Moreover words can describe or refer not merely to complex concepts, but to ideas, actions, situations, events, things, objects, etc. According to Russell we would need an infinity of words to maintain a one to one correspondence. Even within the lawyer's pensive citadel, the language of the law, this task is impossible. 'Negligence' covers both the situation when there are the decomposed remains of a snail in a ginger beer bottle, etc., and also the spark that ignites a hayrick standing beside the line, etc. It seems to me that no dispute as to the meaning of the word '. . .' is necessarily answered by relying on definition.

Although Williams has suggested that it is all a matter of words, in his articles " Language and the Law " and " The Dispute Concerning the Word Law ", he has shown us how to use what is in effect the Wittgenstein family resemblance argumenit extremely cogently in his article on " The Foundations of Tortious Lia- bility ".

Here there is a dispute between Winfield and Salmond. Win- field argues that there is a law of tort, one class of responsibility, one duty .whose breach constitutes tort. Sahnond holds that there are many separate nominate torts, the breach of any of which constitutes a tort; that liability is not the breach of a duty owed generally, but one of many duties. How does Williams settle the matter ? He points to legal history. There were many torts, trespass, nuisance, libel, etc., each started by a different form of action or writ. The reform of the method of pleading by removing the formal requirement of issning a particular writ and pleading law as well as fact by allowing the issue of a writ of sunmons averring only the facts supporting the cause of action has tended to blur the distinctions and differences which exist between, say, nuisance and negligence. One is not now non- suited for pleading the wrong cause of action. Williams here does not argue the matter by reference to words. He does not here say that if you accept Winfield's definition that " tortious liability arises from the breach of duty primarily fixed by the law: this duty is towards persons generally and its breach is redressable by an action for unliqnidated damages ", you must accept the conclusion that it is a breach of duty, one duty and so one liability, tort not torts, Q.E.D.

What does Williams show to be involved in this historical analysis ? He shows that the law of tort or torts has developed




by laying slab upon slab piecemeal fashion, if we may borrow Asquith, L. J.'s metaphor in his judgement in Candler v. Crane Christmas 1951 2 K.B. 164. Here a series of situations involving a particular sort of remedy, the award of unliquidated damages, and sometimes a quia timet injunction, found causes of action which are subsumed under a particular form of action, replevin or trespass vi et armis or quare infra terminum fregit. These situations are at first seen to be like one another, to have resemblances which enable a judge, such as the judge in the Case of Thorns, to say of the following diverse but allied situations that they ought to be remedied-

As if a man lop a tree, and the boughs fall upon another ipso invito, yet an action lies. If a man shoot at butts, and hurt another unawares, an action lies. I have land through which a river runs to your mill, and I lop the fallows growing upon the river side, which accidentally stop the water, so as your mill is hindered, an action lies. If I am building my own house, and a piece of timber falls on my neighbour's house and breaks part of it, an action lies. If a man assault me, and I lift up my staff to defend myself, and in lifting it up hit another, an action lies by that person, and yet I did a lawful thing. And the reason of all these cases is, because he that is damaged ought to be recompensed.1

This analysis, this breaking of a supposed developing general liability into separate disparate nominate torts is actually applicable to separate torts. Take the case of trespass down to the reign of Henry III. Mr. Milsom has shown us the same technique in action here. Trespass, he says, once a word for general wrong of any sort, becomes a particular wrong, under which to place situations having a relationship, possessing similarities, resemblances and equipollences. No two situations are the same, equivalent and identical. Once a concept of trespass or tort has been developed such situations may at a certain level of analysis be materially the same. They may possess legally relevant features.

Now what has happened in the history of tortious liability? This case so resembles that, and that another, that a7form of action given in each case enables us to make a general statement, a classification. This is trespass. We have a concept derived from the multifarious and varied but curiously associated resembling features. There is not any,universal feature resembling the form of some ideal entity, nor yet a series of examples each containing

I The Case of Thorns, Cases on the Law of Torts, C. A. Wright (1958), p. 128.



478 R. STONE:

its own innate nature serving that end which Aristotle's teleology supposes to be built into everything. It is the ferreting out from particular instances of those resemblances which need not belong to every particular of a kind, but which some bear to others but not necessarily to all, like family resemblances.

From the nominate torts like nuisance, negligence, defamation, etc., there are derivable not only these family resemblances which make particular torts the members of a family: the modern system of pleading has enabled us to see in situations having this family resemblance yet a further resemblance that is something like Winfield's " duty owed generally ". It is not what all these forms of action have in common that makes them look like torts rather than contracts or trusts, but what resembling features they share, some with others but not with all, others with others. It is not like that which makes alpha look like omega, in that they are both letters of the Greek alphabet, but like what makes alpha look like z. In the family of games ring-a-ring-a-roses, chess, cricket, bridge, are all games.

The emancipation resulting from the reforms in the practice of pleading has enabled lawyers to see family resemblances in those situations where once a preoccupation with stricter family relations when searching for a form of action blinkered analysis, and pre- cluded us from seeing a general theory of liability. This situation obtained from the seventeenth to the end of the nineteenth century, although some nineteenth-century reforms in the law relating to pleadings and the law relating to appeals and 'error' allowed some judges the occasion to make general remarks, and, most of all, to develop the tort of negligence. In the thirteenth and fourteenth centuries, as Milsom shows us in his articles " Tres- pass down to the reign of Henry III ", a comparable development is discernible, by which ' trespass ' becomes a specific wrong, when it was once a general word for all wrong. Maitland's studies on 'seisin' show the same process at work; and it is never merely a matter of words.

Winfield saw the family resemblances which were contained in the nominate torts, and ascribed those resemblances to a duty owed generally; hence his definition of ' tort ' and his belief in the law of tort. We may notice further that the method used by Williams in his article on " The Foundations of Tortious Liability " is used by judges also in discussing these general concepts. Asquith L. J. in his judgemnent in Candler v. Crane Christ- mas uses the technique in discussing the foundation of tortious liability. He also uses it in deciding the narrower point at issue in the case. It is resolved into or reduced into the case by case




method, at the root of the ratiocination.of the law: how like the case of an architect giving advice causing pecuniary loss is the case of an accountant giving advice causing pecuniary loss, is the case of an architect giving advice causing physical harm, as . . . -reasoning which Wisdom once described as more like the legs of a chair than the links of a chain, and which he now calls the ' case -by case' procedure. Wisdom's account of it contains some men- tion of, but does not emphasise, the intimate connection that it has with Wittgenstein's discussion of games and family resemblances. Wisdom's concern with argument supporting a conclusion perhaps leads him to underemphasise this aspect of Witt- genstein's philosophy. On the other hand Wittgenstein's concern -to give an account of particular concepts such as 'game ', ' reading ', 'understanding', leads to a neglect on his part to remark the argument from particular to particular. There are, however, many passages in the Investigations which bring out Wittgenstein's use of cases. His metaphor of the thread whose fibres criss-cross and overlap conveniently reflects his insistence on particular cases and relates it to his conceptual analysis.

In " Gods " Wisdom distinguishes the case by case argument from deduction by another metaphor. Deduction he calls the links of a chain. A deductive argument proceeds from premise to conclusion in a series of logical steps; the argument is wholly conclusive and completely extensive. Legal argument is not wholly extensive, though it may be completely conclusive. It proceeds from particular to particular, analogically, case by case. A number of incompletely extensive but together conclusive arguments support a conclusion. A common expression in the law is that such and such case is on all fours with the case under con- sideration. These arguments are not like the links of a chain but rather resemble the legs of a chair. They support a conclusion. Judges frequently use such expressions as this one of Lord Chelms- ford in his speech in the House of Lords in Tyrrell v. The London Bank (1862 10 H L C 26, 51): "No authority has been advanced in support of this proposition ".

Wisdom's useful metaphor can be modified and extended to take into account the feature of legal concepts that is better explained in terms of family resemblances than ' universals ', and to incor- porate Wittgenstein's picture of the overlapping and criss- crossing fibres with that of incompletely extensive supports. For legal argument I wish to compare to the strength of a rope. Not all the strands proceed from premise to conclusion in one. The rope derives its strength from the overlapping, intertwining, criss- crossing, ravelling of many strands, each lending support and

32



480 R. STONE:

strength to the other incompletely extensive yet conclusive arguments. The metaphor of the rope better illustrates the dual feature of legal concepts, that they are founded on what may be called ' paraduction ' as argument, and consist in family resemblances.

Induction, I suggest, is like the length of a lever. Observation -upon observation establishes a rule, and further observations can be said to prove the rule and confirm a previous observation. The more times one proceeds along the manifold of inductions the stronger the argument, much as the further from the fulcrum we go the more powerful the lever becomes. Archimedes can be remembered here: 809 -Ol 7TOV urC6O Kal KlVW Ti7V Y-v...

Yet paraduction is the mode of argument at the root of all argument, at the root of both induction and deduction, and is the ultimate argument behind physics, mathematics, morals and philosophy.

Ratiocination not Rationalisation

Judgement is ratiocination, not rationalisation. Although it is right to say that legal argument is peculiar, it is nevertheless ultimately like other argument, for example hilosophical argument. An appreciation of this likeness can help us to realise that legal reasoning is ratiocination not rationalisation.

Waismann argues in his Essay " How I See Philosophy " that deduction and induction are but limited arguments in philosophy, that philosophical arguments are somehow spidery, that the strongest arguments in the philosopher's armoury are reductio ad absurdum and infinite regress, but no one would argue that philosophy consists of policy decisions, or that philosophic development resulted from, or was derived out of, either subconscious or unconscious decisions, Yet there is a body of jurisprudence which claims that judicial decisions which are advances in jurisprudence are thus derived, and can only be supported on the grounds of policy, whatever that may mean. Examples of this thesis occur in Guest's article " Logic and Law ", Harris on " Possession " and Honore on " Ownership ", all essays in the book Oxford Essays on Jurisprudence. Even judges have used some argument such as this, that the judicial process is merely a matter of what Cardozo has called a judicial hunch: that what judges do is first to decide on the facts, and then, in the interests of justice, to decide for one of the parties and so come to a value judgement. The judge, it is said, decides for extra-legal reasons,




and then fixes his judgement by bolstering it up with legal arguments subsequently developed and having little or no relation to the arguments at the bar. This is curiously associated with the view that legal arguments are all a matter of words, having little or nothing to do with concepts. Such a thesis seems to me to argue a kinship to rationalisation as seen in the explanations of patients who under psychoanalysis give some account which they proceed to justify or explain ex post facto to the analyst. Yet argument in the judicial process consists not in rationalisations but in a ratiocination which is an activity involving several well articulated and easily identifiable processes, and which is a kind of that intermediate logic, that informal logic, which I have called ' paraduction', the 'case by case' method. And paraduction is not parataxis, nor ratiocination, rationalisation.

This paraduction is the most usual mode of legal argument, but sometimes judges use the reductio ad absurdum argument, as in the Duke of Norfolk's Case and Re Dorgan dcd, where Harman J. used the reduction to absurdity to get round a syllogistic' argument. Sometimes too the argument to infinite regress is used, as in Bacon's First Maxim of the Law, at others the ratio ruentis acervi or sorites. Deduction is not often used by judges because where a deduction could avail in law the legal advisers of the parties can both make correct deductions and so come to the same con- clusions, and thus advise their respective clients of the probable results of litigation. There is therefore no dispute. Induction in the case of the legal process is, I submit, limited to the decision as to matters of fact based upon evidence. Induction is pecu- liarly applicable to questions of fact, in the sense of ' fact ' in which questions the answers to which, if true, might have been false, and if false might have been true, are questions of fact. Such questions and the decisions upon them are of little interest to the lawyer and so are not often reported. To suggest that the doctrine of precedents, the res judicata rule, and the stare decisis doctrine have anything to do with induction is, in my submission, just a mistake. As Wisdom has pointed out, legal decisions which interest us and the judicial process by which such decisions are arrived at, consist, like metaphysics, in answering particular questions which are not a priori or universal. They consist of non-necessary truths which are obtained by reflection: reflection upon the likenesses and dissimilarities of particular instances either actual or hypothetical, particular to particular-similia e similibus as Bracton called it. It is used when induction and deduction both fail us. Induction fails us because all the evidence is in, all the experiments have been tried, all the weighing, testing,



-482 R. STONE: RATIOCINATION NOT RATIONALISATION

and measuring have been carried out, and yet there still remains a question. "Wave or corpuscular theory of light?" is not like " Did Adelaide Bartlett poison her husband?" or "Did Vacquier put the arsenic in the bottle of salts?" Deduction fails us because all the law is not known. There, are occasions when we must ask which of two rules we should apply, which of two -premises we should use, to determine whether this is negligence (see Clayton v. Woodman and Others and Candler v. Crane Christmas); whether the law as laid down by Buckley L. J. is to be preferred to that of Kennedy L. J. when we decide whether this is the port area, or this an arrived ship within our conception of the port area. See The Aello Per Lord Radcliffe. Bacon's argument in Rege inconsulto, in the Assize Brownlow v. Mitchell, is put in the syllogistic mode, but even here there are terms of the major and the minor premise to be proved or demonstrated. These questions look deductive because they are reflective. They are unlike deductions because they are resolved not by those adaman- tine processes of logic or mathematics but by analogy, because the terms of the argument remain riddles. They are resolved as such questions are solved as " Is an infinite number a number?", " Is Freud's account of the unconscious a proof?", "Is Einstein's account of relativity a proof?", " Is time real?", " Can we know the mind of another?", " Is love possible?", " Is this courage or not, or that injustice?", or " How do we know that ' if A is bigger than B and B is bigger than C then A is bigger than C ' is a rule?" It is not surprising that their nature is misunderstood by such writers as the Scandinavian realists, who think that 'metaphysical' means ' nonsensical ', that questions which cannot be settled as questions of fact are settled are metaphysical, and so nonsensical or meaningless, and that such questions are settled by arbitrary value judgements.

Legal questions are indeed resolved as questions of value are resolved. For value judgements too can be supported by arguments that have some objectivity about them. Wittgenstein pointed out that aesthetics and ethics are like law in that they all contain an element of judging. But judging is not at all the same thing as having a stab at a football pool, or sortilege, or haruspication, or scry, nor yet the same as predicting or prognosti- cating. In the law it is a serious activity consisting of a number of refined, specifiable, describable activities. It is an activity which is in some particulars heterodox and in some ultimate.

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Ratiocination not Rationalisation