According to Edward H. Levi in his book An Introduction to Legal Reasoning, to believe that "law is a system of known rules applied by a judge" (p.1) is, in effect, to accept a myth or conceptual pretense about the actual nature of law. Whether this myth is: something which has been created by the legal system itself; or, established and perpetuated by political rhetoric; or, simply, the result of a misconception on the part of the general public that has, somehow, become common currency when dealing with such matters, Levi never seems to make clear. However, the lack of clarity on this issue may be because the primary focus of his book is on the process of reasoning which he believes characterizes judicial decisions rather than on the etiology of the myth. 1
During the course of the book, Levi attempts to demonstrate that legal reasoning is, essentially, a matter of dialectic in which judges argue from case to case on the basis of analogy with the circumstances and issues surrounding various cases through which judicial decisions are shaped and determined, and according to whether, or not, a given case before the courts is perceived to be analogous with the essential features of previous cases. More importantly, as far as the above mentioned myth is concerned, and in contradistinction to that myth, Levi mentions that the dialectic of legal reasoning by analogy goes through three stages.2
Over time, these stages from a spiral like pattern in which, after the stages have completed their cycle, one is returned, once again, to the first stage and the process begins again, although with a different rule or principle of law, embodied by a newly emerging precedent as the basis for subsequent analogical reasoning. Levi contends this cyclical dimension of legal reasoning is an inevitable, if not necessary, aspect of law which, on the one hand, is a response to the natural ambiguities and differences of perspective associated with the meaning of words and, on the other hand, constitutes a dynamic means of allowing the law to adjust to changing values, technologies and social contingencies through taking advantage of the opportunities provided by the ambiguity and semantic flexibility of certain, key words.
Consequently, the courts serve as a forum in which the community can participate, directly or indirectly, in an attempt to resolve existing ambiguities. This is done by reformulating the structure of the law - within the parameters of possibility inherent in the semantic ambiguity and flexibility that exists in the law - in order to meet the multi-faceted nature of human interaction out of which new issues, problems and questions are consistently arising as various dimensions of such interaction is subjected to new pressures and enticed by new possibilities.
From Levi's point of view "if a rule had to be clear before it could be imposed, society would be impossible." (p.1) Presumably, such clarity would preclude the differences of view and ambiguities that presently pervade law and which, in his opinion, are so vital to a society's being able, as indicated previously, to modernize its legal institutions, structures and so on as changing social needs require.
The present essay will develop a detailed critique of certain themes that are contained within Levi’s position outlined, briefly, in the foregoing. Hopefully, during this process of critical analysis, a defensible point of view concerning legal theory may emerge which is in considerable contrast to, if not directly conflicting with, many features of Levi's approach to law, generally, and legal reasoning, specifically.
The basic theme of this essay is that Levi's analysis entirely fails to come to grips with the underlying challenges of the myth which he is attacking in his book. More specifically, Levi indicates that clarity of rules would not just be counter-productive but, as well, would burden society with an impossible task - akin to that of that of Sisyphus. He also claims that ambiguity of words plays a necessary role within law by providing interpretive flexibility through which to deal with social changes. Finally, he indicates there is an inevitability to his three stages since, sooner or later, all legal concepts which are generated to handle particular kinds or classes of problems will break-down as social charges create new tensions, priorities and so on.
I believe all of his contentions are fundamentally flawed. Indeed, if one adopts Levi's basic approach to legal reasoning, one will misconstrue the processes which are given expression through legal reasoning.
Before proceeding very far into the analysis, there is a need to draw attention to a point that will assume more significance as we go along: namely, to speak of "differences of view" does not necessarily entail the notion of "ambiguity" even though Levi seems to want to argue that such ambiguity creates space within which interpretive differences can survive, perhaps even flourish. To help bring this point out, a distinction should be made between what might be referred to as the "surface structure" and "deep structure" of semantics.
The surface structure of a word, phrase or sentence conveys a broad, general meaning that sets a context within certain parameters of semantic designation. For example, the surface structure of "right" in its judicial (as opposed to its epistemological sense) concerns claims of moral/legal/political entitlement which someone has in relation to a given kind of treatment, object, idea, value, organization, government, or another individual.
In the absence of additional details and/or commentary, there are only a few vague perimeter markers of recognition that have been staked out for understanding with respect to the foregoing characterization of "right". For example, one knows "right" has something to do with several areas of conceptual overlap involving issues of morality, law and politics. One also knows it involves some kind of entitlement claim concerning another person, organization, institution, object, mode of treatment, and so on.
The surface structure may also generate a number of general anticipations or expectations in relation to the notion of "right". Thus, one might anticipate finding some sort of supporting argument associated with a given claim, and this, in turn, may create a conceptual expectation that there will be a need to analyze and evaluate the merits of a claim in relation not only to any accompanying defense of that claim, but in conjunction with other competing points of view, as well.
However, surface structure need not be limited to an abstract representation of the general, structural features or characteristics of some given area of discourse. One could add specific data as well.
For instance, once might know that John Smith is claiming entitlement to compensation from George Jones for the latter's failure to fulfill the contract to which they both agreed in the Spring of 1920. Yet, one still would not have gone beyond the realms of surface structure.
A general understanding of all the words and ideas, people, objects, and so on, that are included in the opening sentence of the previous paragraph might require venturing outside the specific area of "rights" discourse. Nonetheless, one would not have to penetrate to any great depth in order to grasp the general sense of what was being communicated.
Everything is, so to speak, on the surface. Once one has understood the general context of meaning that was sketched out previously, one has come to grips with surface structure.
Deep structure, on the other hand, runs beneath the parameters of meaning that demarcate the ‘sense’ to which surface structure gives expression. One is no longer simply trying, say, to match up ideas, names and objects to their classes in order to establish a general context of meaning, one is, now, trying to determine the logical structure of the ontological and epistemological theories that constitute the metaphysical orientation which orders and shapes what is being said.
One is looking at the arguments, values, principles, rules and so on that stand behind surface structure utterances. As one does this, one is attempting to: (a) understand what such arguments entail in terms of a model of reality; and, (b) evaluate that model, once understood, with respect to its tenability as a defensible model of reality --- or, at least, those aspects of reality with which the model's main ideas are concerned.
Consequently, deep structure represents a sort of hermeneutic of experience3 - both for the person who speaks or writes, as well as for the person who listens or reads. Filtered through this characterization of "deep structure", fundamental communication (as opposed to surface communication) is an engagement of two or more deep structures or two or more systems of experiential hermeneutics involved in reciprocal attempts at translation and evaluation of one another’s deep structure (s) in terms of their respective hermeneutics of experience.
If one offers an argument in defense or support of a given right or claim of entitlement, such an argument is not something separate from the individual's notion of "right". Rather, the argument is seeking to provide a fuller, more elaborate explication or description of the metaphysical roots to which not only the surface structure is tied but to which associated or surrounding tacit dimensions of experience relating to, bearing upon, or raising questions for that surface structure, also are tied.
Given the foregoing, one can differentiate between "differences of view" and "ambiguities of words" in the following way. When two or more people have different understandings concerning, for example, the term "right", this is not a case of the ambiguity of "right" since one will very likely get agreement on the surface structure designation of the word. Rather, the differences are a reflection of the multiple possibilities of alternative interpretations which exist on the level of deep structure in relation to the construction of a defensible metaphysics and ontology concerning the notion of "right".
These "differences of view" are quite different from cases of ambiguity such as: Mary glanced at John and passed the keys to Bob which prompted Harold to say: "I don't want to see you doing that again." In this instance one does not know what "that" refers to - whether to Mary's glancing at John, or Mary's passing the keys to Bob, or Bob's receiving the keys. However, this problem does not require a deep structure explication of "that", for, the problem is resolvable entirely through the level of surface structure - simply by specifying the referent of "that".4
Problems of deep structure are not so easily resolved since it is not sufficient merely to specify or explicate what one means by the term "right" by describing or pointing out its reference class. One's meaning becomes, potentially, defensible through the elaboration of an hermeneutic of experience (i.e. metaphysics) that can be compared with, and measured against, other experiential frameworks of hermeneutics.
Only when all ambiguities have been cleared up, can there be a clear idea of what "differences of view" exist. Ambiguities do not so much entail differences of view as they obscure them, for until surface structure is settled, no purpose is served - except, perhaps, generating confusion - to delve into deep structure considerations. Thus, when Levi says: "in an important sense legal rules are never clear", he risks entrenching a permanent state of confusion into matters of fundamental importance.
After presenting an overview of the main ideas of his thesis concerning legal reasoning, Levi enters into a direct examination of actual judicial decisions in order to substantiate various claims made when summarizing his position. The first area of law he explores with this purpose in mind is that of case law - with special emphasis on third party liability issues, and, therefore, he wishes to show how legal reasoning in the area of case law has gone through three stages in relation to the "inherently dangerous" concept.
According to Levi, during the first stage of judicial reasoning, "the courts fumble for a phrase" (p. 8) that will serve as a basis or standard against which later cases can be compared in the search for similarities and differences of controlling legal themes upon which current and future judicial decisions will rest. Once a certain word or phrase catches on and is acknowledged to express a principle, value, or idea that judiciously, as it were, solves a given kind of legal problem, the word or phrase becomes a legal concept that tends to control the nature and direction of subsequent decisions in such cases. The legal term or phrase used to characterize a problem before the courts is likened to the issue at stake in a precedent setting case.
Once a legal idea precipitates out from court proceedings and is used as a guiding principle in later cases, one has encountered Levi's second, proposed stage in the process of evolution or development with respect to legal reasoning. However, before arriving at the point when a legal concept becomes crystallized, Levi claims that courts go through, as indicated above, a fumbling process.
Thus, Levi points out how in a number of earlier cases of third party liability (Dixon v. Bell, Langridge v. Levy, and Winterbottom v. Wright), the notion of 'dangerous articles' either did not form part of the court's decision to allow or deny the recovery of damage by the plaintiff - or, even if put forth by one of the lawyers arguing before the court, was rejected by the court as a legitimate basis for reaching a decision in the case at hand. Nevertheless, Levi suggests there is an interim period of conceptual ‘fumbling’ which leads up to the final acknowledgement of , in the present case, the notion of ‘dangerous articles’ as a legal concept.
In Dixon v. Bell, Levi believes Lord Ellenborough had begun the ‘fumbling’ process by creating a conceptual category concerning "commodities mischievous through want of care" (p. 10). The commodity in question in that case was a loaded gun.
The owner of this gun had sent a young, teenage servant girl to get it for him. While in the servant girl's possession and being played with by the servant girl, the gun discharged, seriously injuring the plaintiff's son.
Apparently, in Langridge v. Levy, the counsel for the defendant tried to introduce something similar to the Ellenborough conceptual category governing the Dixon v. Bell case by seeking to have the courts recognize a distinction between: commodities that were "mischievous by the act of the defendant" (p. 11), and those which became mischievous when something more is done to it by, for example, the plaintiff.
This time the commodity was a defective gun which had been purchased by the plaintiff's father for the use of the father and his sons. Subsequently, the gun had blown up in the hands of one of the sons.
The court was prepared to admit that a gun was not, in and of itself, dangerous or mischievous and required an additional act of loading to become so. However, the court refused to allow the distinction sought by the defendant's counsel and, thereby, create a precedent concerning several categories of articles - some of which are mischievous or dangerous and some of which are not.
The basis of the court's decision appeared to revolve about the legal concept of fraud which seemed to control the decision in the case. In this respect, Levi points out, "the seller had falsely declared that the gun was safe when he knew it was defective and ... knowing it was to be used by the plaintiff" (p. 11).
Finally, in Winterbottom v. Wright - which, for Levi, marks the last step in the preliminary round of judicial reasoning that takes place prior to the appearance of a legal concept concerning dangerous objects or commodities - the court rejected the plaintiff's claim for recovery of damages incurred through injury by the plaintiff who was a coachman employed by the Post Office.
The coachman had become permanently lamed while driving a coach that had been purchased from the defendent through contract by the Postmaster General. Due to a manufacturing defect in the carriage, the coach had broken down while in use, and this breakdown led to the plaintiff's injury when he was thrown from the coach during the breakdown.
The court declared the fraud category of Langridge v. Levy was inapplicable to the case before them (Winterbottom v. Wright) since there was no evidence demonstrating that the defendant had knowledge about the problematic part prior to his selling the coach to the government. The court also said that the notion of 'direct dealing' which had been part of the Langridge v. Levy case - since the defendent in that case knew the son of the man, to whom he sold the gun, would be using the gun - did not apply to Winterbottom v. Wright since the coachman was not the actual person or agency originally contracting for the coach, nor could the defendent reasonably have known that the plaintiff would be driving the coach in question. Furthermore, the court would not even entertain the possibility of considering the defective coach to be a weapon of a mischievous or dangerous nature, thus under-mining any attempt by plaintiff's counsel to establish an analogy between the present case and, say, Dixon versus Bell.
Essentially, the court ruled in Winterbottom v. Wright that construing liability to include damage sustained by a third party due to a defect which ensued from the manufacturing process, would generate "absurd and outrageous consequences". Therefore, in order to shield society from such consequences, the court did not uphold the plaintiff's claim for recovery of damages.
FOOTNOTES
1.) Levi does say, in a number of places, words such as: "The process (i.e., his thesis of analogical reasoning) is likely to make judges and lawyers uncomfortable" (p. 9) which would suggest that at least some judges and lawyers are working under the illusion of the myth's truth. Yet, later on in the book, he speaks the same way about the allegedly mistaken conceptions of at least some legislators concerning the same myth. [Return to Text]
2.) Roughly speaking, they are: (1) the search for and identification of a concept capable of handling a certain legal issue; (2) the establishment of that concept as an accepted way to decide such issues; (3) the breakdown of the concept under the pressure of new considerations and problems.[Return to Text]
3.) Experience, here, should be construed in the broadest possible terms to include emotional, conceptual, and spiritual dimensions, as well as sensory aspects.[Return to Text]
4.) Obviously, one could enter into a deep structure analysis of the underlying metaphysics of Harold's statement, but this is not required to clear up the ambiguity in questions.[Return to Text]
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