From Lars Hertzberg: The Limits of Experience (Acta Philosophica Fennica, Helsinki 1994).

 

 

 

 

 

 

                 9

       On the Nature of Legal Expertise

 

 

1. Members of the legal profession are presumed to possess an expertise which enables them to decide on the correct application of the law in particular instances. What is the nature of this expertise? Is anything involved in it beside familiarity with valid statutes and pre­cedents? If some additional form of knowledge is involved, from what source is it derived, and how is it employed in applying the law?

   These are the questions that I shall concern myself with in this paper. I shall not propose any definite or detailed answers to them, however; rather, I shall discuss some views about the general lines along which the answers to them are to be sought, and try to bring forward some of the problems that seem to me to be connected with those views. I shall first of all try to spell out, in very rough outline, the view of legal knowledge and legal reasoning that might be thought to be suggested by Wittgenstein's remarks about language and its relation to action. I shall then compare this view to some of the other views that have been held concerning the nature of legal knowledge. Finally, I shall discuss certain problems that might be thought to be connected with the view of legal knowledge that I have sketched out.

 

2. To think about legal reasoning in the light of Wittgenstein's remarks about language and meaning, presumably, is to think about it roughly along the following lines: In being trained for the legal profession, a student is being initiated into the legal tradition of his society. He learns in this way the com­monly accepted standards for weighing evidence, for applying prece­dents, for deciding whether a case falls under a particular norm, for assessing considerations of equity, etc., etc. What is being conveyed to the student through the process of training is not primarily to be thought of as a set of general rules or principles, as something that can be expressed in a set of propositions, but rather as a concrete skill: as a way of doing things.

   Only if we regard the student's training in this way can we understand how it is able to achieve what it is supposed to achieve: to put him in a position to see how the law is to be projected onto new cases coming up for decision. What we do in a particular case can never be explained by an appeal to principles alone. It depends on how we have learned to apply those principles, and if it were thought that we must be guided by some other principle in what we do, an infinite regress would ensue. Hence it be­comes impossible to explain the particular decision. This point is put by Peter Winch as follows:

                ... a form of human activity can never be summed up in a set of explicit precepts. The activity 'goes beyond' the precepts. For instance, the pre­cepts have to be applied in practice and, although we may formulate another, higher‑order, set of precepts prescribing how the first set is to be applied, we cannot go further along this road without finding ourselves on [a] slippery slope ...[1]

 

Or, in Wittgenstein's words:

                How can he know how he is to continue a pattern by himself - whatever instruction you give him? - Well, how do I know? - If that means 'Have I reasons?' the answer is: my reasons will soon give out. And then I shall act, without reasons. (PI, § 211) 

 

                'How am I able to obey a rule?' - if this is not a question about causes, then it is about the justification for my following the rule in the way I do.

                  If I have exhausted the justifications I have reached bedrock, and my spade is turned. Then I am inclined to say: 'This is simply what I do.' ... (PI, § 217)

 

The reason why principles by themselves cannot be taken to guide deci­sions is actually quite simple: it is the obvious fact that we cannot dis­tinguish between correct and incorrect applications of a principle simply by taking note of the outward form of the sentence (the signs or sounds) expressing it. In addition, we must, of course, know the language in which the sentence is formulated, and this means knowing how the lin­guistic expressions of which it is made up are commonly used by mem­bers of the language community. The meaning of expressions, we might say, is their role in some context of human intercourse. Only in relation to that role can we distinguish between correct and incorrect ways of using them or responding to them.

   In the case of legal uses of language, the context that is relevant to their interpretation is apparently the shared practices of the legal com­munity. Hence the question how legal norms and principles are to be interpreted is ultimately to be settled by taking note of their role in the legal practice in which they have their place. (And it can be settled at all only to the extent that there can be found common ways of applying them.)

   The law student learns the language of law by becoming a participant in the shared practices from which that language derives its sense. What he needs apart from familiarity with the relevant statutes and precedents in order to carry out the tasks of his profession is a practi­cal skill, not just knowledge of the truth of any particular propositions. Even if he could formulate general principles of reasoning, the test of whether he understood them correctly would be the way he applied them, the decisions he made in particular cases. The only way in which legal reasoning can ultimately be characterized, accordingly, is by pointing to particular instances.

   There is a remark by Wittgenstein about mathematical reasoning that seems to apply to legal reasoning as well: 'This is how one calculates. Calculating is this. What we learn at school for example.' (OC, § 47). That is to say: we are taught the meaning of the word 'calculate' by being shown particular examples of calculation and being told that this is what one is supposed to do when one calculates. One is not taught some abstract principle of calculation of which the particular instances are only applications. Any attempt to substitute a general characteriza­tion for the reference to particular instances is bound to fail. It could be understood correctly only by someone who already knew how the general characterization was to be applied - that is, by someone who had no need for it.

   The possibility of legal reasoning (as of other forms of reasoning) is conditioned by the fact that most people, after going through similar training, will agree in their judgments concerning most cases.

                'So you are saying that human agreement decides what is true and what is false?' - It is what human beings say that is true and false; and they agree in the language they use. That is not agreement in opinions but in form of life. (PI, § 241)

 

                If language is to be a means of communication there must be agreement not only in definitions but also (queer as it may sound) in judgments.... what we call 'measuring' is partly determined by a certain constancy in results of measurement. (PI, § 242)

 

   Legal knowledge is not the knowledge of any particular facts that have been uncovered, say, through legal research, and which enable judges, lawyers and officials to apply the law. (Indeed it would be strange if one needed to know some special facts to be able to interpret the law, since in our society citizens are expected to obey the law without the benefit of legal training.) Special training in law is needed because - and to the extent that - legal reasoning involves specialized ways of thinking; ways of thinking that differ from those involved in other human activities. As we shall see later, however, certain problems are connected with the notion that legal reasoning has a 'specific' character (Sec. 5).

 

3. It might be helpful, in attempting to assess the merits of the view of legal reasoning sketched out here, to consider it in relation to some of the other ways in which the nature of legal reasoning has been understood. One such alternative view is legal positivism. The form of legal positivism that will be important to our present concerns is that charac­terized by H. L. A. Hart as 'the view that correct legal decisions are uniquely determined by pre‑existing legal rules and that the courts either do or should reach their decisions solely by logical deduction from a conjunction of a statement of the relevant legal rules and a statement of the facts of the case'.[2]

   If this view is taken as an attempt to account for the way in which judicial decisions are made or justified, its shortcomings should be ob­vious. There are certain aspects of the judicial process that cannot, at least in their entirety, be regarded as a matter of deducing propositions from other propositions. Among them are the following:

 

(i)         Deciding what the valid statutes are (the problem of recognition).

(ii)        Deciding what the facts of the case are (the problem of evidence).

(iii)       Deciding matters concerning which courts have discretionary po­wers.

(iv)       Deciding borderline cases (the problem of open texture in Hart's terminology).

 

   It is, however, tempting to think that these aspects of the judicial process simply constitute 'fringe' problems for the legal positivist, that they are limitations which show that the deductive account of legal reasoning cannot be 'the whole story', but that it can still be regarded as giving a correct description of the 'core' of this process. One might reason as follows: discretionary powers and borderline cases aside, once the valid statutes have been identified and the facts of the case settled, the correct verdict can be reached by means of a deductive argument.

   The idea here seems to be that there is nothing - no special facts or skills - that one needs to learn in order to be able to reach a correct decision, once the statutes and the facts of the case are known. This part of the judicial process takes care of itself, as it were, for it is merely an application of the principles of deductive reasoning, and these are al­ways the same, regardless of the subject‑matter. (Prominent among them, presumably, would be the law of non‑contradiction, the law of the excluded middle, and modus ponens). We must know these principles if we are to be able to reason at all, and so we do not specifically have to be taught how to employ them in legal argumentation. (By the same token, one may need knowledge of physics and considerable engineering skills to know what computations are needed in planning a bridge, but one does not need them to carry out the computation itself. Mathematics is always the same, whatever the problem that it is being used to solve. And a corresponding process of 'logical computation' might be thought to lie at the core of the judicial proceeding.)

   This account of legal reasoning may sound plausible. Nevertheless, I should like to suggest that the picture it conveys is a misleading one. Though in order fully to spell out my reasons for making this claim I should have to enter into a discussion of questions of the philosophy of logic for which there is no room here, I shall try to sketch them out very briefly. (I am aware that what I am about to say on this question is likely to be found controversial.) I do not wish to deny that there are aspects of the judicial process that could be represented in the form of deductive arguments. The point I want to make is not that the deductive account of legal reasoning says something false, but that it fails to ex­plain anything: and by this I do not just mean that it fails to repre­sent the manner in which judges actually arrive at decisions, but, more important: contrary to what it claims, this view cannot account for our ability to distinguish between correct and incorrect decisions.

   This is one aspect of a point that could be more generally expressed in the following way: it is misleading to think of the principles of de­ductive reasoning as explaining our ability to distinguish between valid and invalid arguments. It would be more correct to turn things round, and say that, for a representation of those principles to be correct, it must reflect the way in which we actually draw the distinction between valid and invalid arguments in particular cases. In other words: we do not reason like this in a particular case because we accept these principles, but rather these general principles are acceptable to us since this is how we reason in a particular case.[3]

   This point, of course, has a close connection with the line of thought that I presented in the previous section. Quite briefly and crudely, the reasons for it could be put as follows: whether an argument is valid or not depends on the rules governing the use of the concepts involved in the argument. Those rules can be established by taking note of what particular arguments employing those concepts are generally agreed to be valid or invalid. In this way, the question what arguments are valid ultimately depends, in part, on what arguments are de facto accep­ted as valid by those who speak the language in which the arguments are formulated. (That there is a logical connection between the English words 'buy' and 'sell' shows itself, among other things, in the fact that an inference from A's having sold a piece of property to B, to B's having bought that piece of property from A, is usually accepted as valid by those who know English.) In view of this, it would be circular to maintain that our acceptance of something as a valid argument is itself based on the principles of valid argument. (This is evidently the point of Winch's admittedly somewhat bold remark that 'logical relations be­tween propositions themselves depend on social relations between men'.[4])

   This should not be taken to mean that a fallacious argument may not on occasion meet with widespread acceptance. Argumentation, too, has its tricks and its conjurers. What it does mean, however, is that this can­not happen as rule.

   Applying this point to the case of legal reasoning, we might say that it would be a mistake to suppose that the ability to evaluate legal argu­ments can be explained by an appeal to the principles of deductive reasoning, since it is only by finding out what sorts of argument are as a rule accepted as correct in a legal context that we can determine how those principles are to be applied in evaluating legal arguments. Thus, to see what the law of contradiction, modus ponens, etc., mean in the case of sentences containing expressions such as 'ownership', 'valid deed of purchase', 'transfer of ownership', 'inheritance', etc., we must find out how such sentences are actually used by lawyers, and what inferences between them they accept.

 

4. A different view of the nature of legal expertise is that which is ge­nerally known as legal realism. To put it briefly, this view holds that the truth of an assertion concerning a legal matter depends on its being a correct prediction of the decision that a judge or other competent offi­cial would make if the matter were submitted to him. This view is epitomized in Justice Holmes's dictum: 'The prophecies of what the courts will do . . . are what I mean by the law'.[5]

   It is important, in trying to understand this view, to take account of the fact that legal training in Western society has two different though closely connected goals. For one thing, students are trained for positions of authority (as judges, etc.) in which they will be applying the law - that is, in which they will be making pronouncements, presumably in accordance with valid statutes, in circumstances in which what they say will gain the force of legally binding decisions. Pronouncements made in this capacity might be said to have a more or less performative character. On the other hand, students are trained to give legal advice, to explain statutes, to argue points of law, etc. In doing so, we might say, they make judgments about the way the law is to be applied. (The application of this distinction should be clear in most cases, although the two types of judgment may have the same linguistic form. But some utterances seem to have a dual character, for instance the arguments supplied by a court in support of a verdict.)

   Legal realism, then, is the view that these two types of judgment differ not only with regard to their legal force - their status in the legal order - but also with regard to their logical status. The legal advice given by a lawyer to his client, for instance, is an 'unofficial' legal judg­ment, which depends for its truth on its agreeing or failing to agree with some real or hypothetical official decision made by a court (or some other authority). For official decisions, however, there is no such test: on the contrary, the concepts of truth and falsity have no application in their case. Legal expertise, according to this view, consists in knowledge of the sort which enables a person to predict the decisions of courts. The work of the legal scholar will be aimed at identifying the factors on the basis of which decisions can be predicted; it can, accordingly, be re­garded as a branch of behavioural science.

   There are, no doubt, considerations that would seem to speak in favour of this view of legal expertise. Legal reasoning can, I believe, be thought of as an attempt to supply a corrective (though misleadingly formulated) of a certain customary view of legal reasoning. According to that view (one expression of which is the version of legal positivism just con­sidered), the legal expert is a person adept at 'extracting' the right de­cision in each case from the relevant statutes by contemplating the words in which they are formulated. This view is unsatisfactory because it ignores an important feature of legal reasoning. Knowledge of what a statute says and what it entails in the case at hand, has little value for legal purposes if this does not accord with the way in which the law is actually applied by the courts. (The text of the law may be ambiguous, and in that case we may have to turn to the courts to find out what the practice is. On the other hand, even where the meaning of a statute is clear, it may be obsolete, or the courts may have adopted a non‑literal interpretation of it, etc.)

   A description of the nature of legal discourse must allow for the fact that there is a particular set of judgments - official applications of the law - that occupy a special position within it; in this way, it differs from other uses of language. If a lawyer declared, for instance, that he was no longer going to take account of the actual practice of the courts in interpreting the law, that he knew how to interpret the law better than judges, he could no longer be said to practise law. He would no longer 'play this game'.[6]

   The legal realist draws attention to this fact in pointing out that in assessing a person's legal expertise, we must take into account his skill at predicting official decisions. And this is a merit of his position. How­ever, he clearly overstates his case. The relation between official and unofficial legal judgments is not as straight‑forward as he makes it out to be. An official decision (even one made by the supreme court) is not infallible. (As Hart points out, we must not confuse the question of the finality of an official decision with the question of its possibly being erroneous.) A lawyer, having made a mistaken prediction of the court's decision in a particular case, may attribute his failure to the court's hav­ing made an error. There is no logical obstacle to doing this, though there are logical limits to the extent to which it is possible to blame the courts: in brief, one cannot claim that the courts are always wrong.

   A situation might, of course, arise, in which judges were, for instance, so corrupt that they could no longer be said to be applying the law. But this would not mean, as it would have to mean on the legal realist view, that the legal order had undergone a change. But neither would it mean that henceforth one could disregard official decisions in establishing what the legal order was; that official decisions were now somehow outside the legal order. Rather, to the extent to which judges were cor­rupt, it would be questionable whether a legal order (in the ordinary sense) could be said to exist at all. A 'crisis of legitimacy' would ob­tain, in which concepts like legally valid and legally invalid would no longer have any clear application.

   The lesson to be learned from this discussion, I believe, is that a con­dition for there to be said to be such a thing as a 'legal order' is that there should be substantial agreement between official and unofficial legal judgments. In other words, judges must, on the whole, be in the habit of applying the law in what is generally thought to be the correct way. (It would, however, be a mistake to try to identify some definite limit - say, in terms of the percentage of predictable decisions - to when a legal order can or cannot be said to exist. The concept of a legal order is obviously a vague one.)

   The legal realist apparently proposes to regard the behaviour of judges as phenomena existing in their own right, as the basic data of legal in­quiry. What this view fails to allow for is the fact that in making their decisions, judges, too, are guided by their expertise; they are trained to apply the law, and they carry out their function as judges only to the extent that they consider it their task to do their best to apply the skills that they have been taught. The judge's attitude towards the decisions he makes is, or should be, one of trying to discover the correct appli­cation of the law, not one of inventing an application for it. Though it is true that the individual judge in making his decisions takes part in the collective task of shaping judicial practice, he will gain acceptance for his decisions to the extent to which the decisions he makes will be seen as a natural continuation of previous practice. Thus there is a mutual logical dependence between official and unofficial judgments.

   The skills of judges are of one piece with those of lawyers, and are acquired through the same process of training, though they are employed for different purposes within the legal order. Judicial decisions, just like the judgments of lawyers, are based on reasons, and the reasons that both have been taught to consider relevant are of the same kind. The skills of lawyers in predicting courts' decisions are not to be thought of as deriving primarily from an external relation - that of observer and observed - but rather from an internal one - from the fact that lawyers and judges play the same 'game'.

 

5. I have tried to outline some of the ways in which the nature of legal reasoning can be illuminated by regarding it as an activity defined by shared ways of acting and judging. This line of approach, as I have tried to show, helps us to appreciate the merits of legal positivism as well as of legal realism, while at the same time bringing their limitations into the open. Each of these views, while providing a correct representa­tion of certain aspects of legal reasoning, fails to make the nature of legal expertise intelligible; one by, as it were, ignoring the empirical element involved in it, the other one by misrepresenting the way in which that element enters.

   We should note, however, that the notion that there are ways of think­ing peculiar to legal contexts, which I have made use of in this paper, is itself fraught with certain dangers. I shall conclude by saying a few words about these. We should keep in mind that legal discourse is not to be thought of as simply a specialized use of language for special purposes, in the same sort of way, say, as the languages of carpentry, or soccer, or music are specialized ways of using language. The latter uses of language are connected with activities whose nature does not depend on the so­cial practices that surround them, except to the extent to which inter­action is always bound to take place among the practices existing side by side in a human community. Legal institutions, on the other hand, are intimately intertwined with the entire framework of norms and prac­tices which constitute the life of a society. The interdependence between legal and non‑legal institutions, however, is varied and complex, and hence cannot be summed up in a single formula. In order to get clear about its nature, let us consider a range of cases. (It might be thought that the various forms that this interdependence may take are a matter of mere sociological interest, and have no importance for understanding the nature of legal reasoning. This, I think, would be a mistake: on the contrary, I would like to say, an important part of the task of getting clear about the logical character of legal reasoning consists in getting to understand the relations that obtain between legal and non‑legal con­cepts and ways of reasoning.)

   (i) Some aspects of the legal order seem to be designed primarily to uphold certain prevalent practices or generally accepted norms of con­duct. They do so by clearly delimiting the forms of conduct required, and by enforcing those requirements. In these cases, the law can be re­garded as giving expression to concerns shared by a large proportion of the members of the community; frequently, those concerns will be deep­ly entrenched in common traditions. The concerns expressed in the law will be held to determine, roughly, what may or may not count as a just application of the law in question; what sorts of consideration are to be held relevant in applying it; etc. In this way, those concerns can be said to delimit the autonomy of legal reasoning. (We might think, in this connection, about the penal statutes aimed at protecting the physical safety of citizens; laws relating to real property; laws of inheritance; etc.)

   (ii) Some aspects of the law seem primarily designed to bring about a certain organization of human activities within a framework of shared concerns. Again, those concerns will be regarded as providing general guidelines for the application of the law, although in cases of this sort the legal community will enjoy a greater autonomy in its reasoning than in the previous case. (Consider, for instance, laws of taxation; laws creat­ing public institutions; rationing laws; traffic regulations; etc.)

   (iii) Some aspects of the law seem primarily designed to change pre­valent practices or norms of conduct for the sake of overriding common concerns. Here again, those common concerns will provide guidelines for what will count as just applications of the law. (Consider, for instance, laws prohibiting the sale of liquour; the Swedish law outlawing corporeal punishment of children, etc.)

   (iv) Sometimes the legal order will contain parts that appear to be primarily designed to change the conduct of members of the community, but which are not regarded as arising out of shared concerns. The con­cerns expressed in the law might be those of an all‑powerful dictator, a ruling elite or an occupying force. The law, in this case, will be like a command given by a ruler to his subjects. In this case, the application of the law will not be subject to the constraints imposed by commonly shared ways of thinking within the community. The appliers of the law are, as it were, left a free rein. But to the extent that this situation ob­tains, official decisions will be regarded as arbitrary by those subjected to them. (This will be so regardless of whether those decisions are pre­dictable or not.) We commonly refer to the legal order as a 'system of justice' ('Rechtsordnung'), and this might be supposed to be connected with the fact that we expect judicial decisions to be acceptable from the point of view of ways of thinking prevalent within our community. For an official decision to be arbitrary, however, is for it to lack this element of acceptability. For this reason, it could perhaps be said that a 'system of justice', to the extent that it tolerates arbitrary decisions, cannot be regarded as a system of justice in the full sense of the word, but rather as a degenerate heir, or primitive precursor, to such a system. (We should keep in mind that there are ways of organizing and super­vising human intercourse to which the concepts of a legal order or a system of justice are not applicable.)

   I have here listed four types of cases and given a very cursory charac­terization of them. Undoubtedly, there are important distinctions to be made within each type of case. It should also be evident that the limits between the types are not sharp. The distinctions are based on the way in which a given statute is regarded, on its role in the community's life: as conditions change, the role that a statute plays may change too.

   The upshot of this discussion is apparently this. To some extent, the reasoning of legal experts may involve a peculiar skill, in the sense that it will consist in the use of peculiar concepts, or in peculiar ways of using common concepts. But there are limits to the extent to which legal reasoning may deviate from non‑legal ways of thinking. When the man­ner in which a law is interpreted by the legal community ceases to be intelligible to those whom the law concerns, it becomes questionable whether that law can still be regarded as forming part of a legal order. This, together with the special position occupied by official judgments in the legal use of language, seems to form one of the most important characteristics marking it off from other ways of using language.



    [1]          Peter Winch, The Idea of a Social Science and its Relation to Philosophy (London: Routledge & Kegan Paul, 1963 [1958]), p. 55.

    [2]          Hart, H. L. A.: 'Legal Positivism', in: P. Edwards (ed.), The Encyclopedia of Philosophy (New York: Macmillan & The Free Press, 1977), Vol. 4, pp. 418 ‑ 420.

    [3]          Cp., in this connection, the discus­sion in Peter Winch, op. cit., Chap. II, Sec. 3.

    [4]          Op. cit., p. 126.

    [5]          Quoted in H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), p. 1.

    [6]          This is of course a direct consequence of the fact that the importance of legal expertise for our lives is mainly based on our concern with being able to predict official measures. We usually want to know what the authorities will actually do, or what they would do if ..., not what they ought to do. But we should keep in mind that this does not exhaust the importance that the legal order may have for us. Consider, for instance, the role that appeals to the law may have in moral or political argument. The history of Finland during the years of 'Tsarist oppression' provides a case in point.