Are you a rules skeptic?
Justice Scalia is an ardent defender of the virtue of legal rules. He says such rules reduce dramatically any uncertainty and indicate a level of justice by providing “a clear, previously enunciated rule that one can point to in explaining a decision.”
I suspect that the judges’ attitude and understanding of the nature of rules and categories are an important aspect for the large gap that separates the two factions of the Supreme Court.
We commonly judge rules to be categorical (absolute unqualified). Most of us have heard of Kant’s Categorical Imperative. But when you see the sign “No animals allowed on the bus” do you, being a skeptic by nature and a sophomore in Philosophy, start the argument that humans are animals?
Consider the common classroom exposition on syllogisms “All men are mortal; Socrates is a man; therefore Socrates is mortal.” The logic demonstrated in this exposition depends upon the rationalist model of a category. The rationalist model of category, as being confined to that which is “necessary and sufficient”, states that all things that share the property P—as in this case all mortal humans—are in the category; whereas those things that do not share the property P (not-P) are not in the category.
“Rationalist categorization according to common properties conceives of categories as metaphorical containers…The use of the CONTAINER schema to structure the concept “category” (and “concept”) leads to the inference that categories (and concepts) have well-defined boundaries.”
Most categories, however, are not categorical.
“Rules manifest the same flexibility, variability, and sensitivity to context as the categories of which they are composed. Rules, moreover, represent legal categorizations of experience that a community (for its lawmakers) adopts for a reason. As such, they exhibit the dynamic properties characteristic of categorization…”
‘No running in the halls’ is a rule often seen in schools. Running is a graded category, i.e. running might be anything between a ‘sprint’ and a ‘jog’ with no clear demarcation line. When judging a violation of this rule one must make a judgment regarding “the degree of category-extension appropriate to the rule”. The consideration of the purpose of the movement down the hall becomes a factor in deciding the demarcation line.
Can the decision maker make judgments mechanically in such cases? Not so when we add to the case the question ‘can a candidate seeking student counsel office run her campaign in the halls?’ Does the rule “no running in the halls” apply to the candidate running for class office?
Because we know immediately what the context for the rule is, we can easily determine that running in the halls does not apply to the student running for class office.
We can see that one’s comprehension of the proper application of rules is intimately determined by one’s comprehension of both language and how categories are formed.
The individual who thinks that categories can be formalized as “necessary and sufficient” conditions would judge that, in principle, rules operate in the precise and clear categorical manner as conventional understanding thinks. However, those who might believe that language and meaning are indeterminate will also reach the same conclusion.
“The conventional rule formalist will stress the central cases (such as sprinting in the hall) where the rule works perspicuously well. Conversely, the rule skeptic will emphasize the marginal cases (such as the fast walk) and the metaphorical extension (such as running for office) to highlight the indeterminacy of the rule. But each view has hold of a different portion of the elephant and, thus, provides an account that is fatally incomplete in a different way.”
Before I began studying Winter’s book I was a rules skeptic. Now I am somewhere in between that view and hopefully a more sophisticated view once I finish studying this book. This is my first attempt to see the world through the eyes of a legal mind.
Winter has discovered the revolutionary nature of the theories of SGCS (Second Generation Cognitive Science) and is applying those theories to the teaching and practice of law.
Quotes from A Clearing in the Forest: Law, Life, and the Mind by Steven Winter. “Steven L. Winter is the Walter S. Gibbs Professor of Constitutional Law and director of the Center for Legal Studies at Wayne State University Law School.”