University of Transnational Business Law

Context of Discovery, Context of Decision and Context of Justification in the Law

by Bruce Anderson


I. The ‘rigid’ distinction between discovery and justification

Most contemporary scholars interested in judicial decision-making take it for granted that the ‘actual’ procedure a judge follows to reach a decision is one thing, and whether or not that decision is legally justified is a quite separate matter. In fact, a ‘rigid’ distinction is made between the actual decision-making process (the process of discovery) and the process of publicly legally justifying that decision (the process of justification). This distinction between the decision process and its justification is talked about in terms of the context of discovery and the context of justification.
The process of discovery is commonly portrayed in terms of the emergence of judicial ‘hunches’ or ‘insights.’ Hunching, the psychological process of discovering or inventing a possible solution to a case, is presumed to be an activity that is not subject to conscious control. Hunching is considered a non-rational, non-logical, and unconscious activity. Further, hunching is seen as something that is ‘subjective’ in the sense that hunches and insights come out of the blue and also in the sense that hunches and insights depend on, or are motivated by, factors such as a judge’s mood, personality, background, education, and experience. For these reasons it is crucial to test whether such hunches and insights, no matter how or where they come from, are legally justified. The key question, then, is whether a judicial decision meets the requisite standards of rationality and impartiality demanded by the legal system. Hence contemporary legal philosophers and legal theorists believe that what a judge ‘actually’ thinks about is one thing, but its public legal justification by supporting reasons and argumentation is another independent and more important matter.
For scholars interested in judicial decision-making the proper subject matter of their investigations is the context of justification, not the context of discovery. They are not very interested in the context of discovery and leave it up to psychologists to study the psychological events and process that constitute the decision-making process. Unfortunately, psychologists have not made much progress in understanding the actual decision-making process. The consequence of this state of affairs is that legal reasoning and legal argumentation are thought about and portrayed solely in terms of the context of legal justification.
In Section II three approaches to investigating legal justification are highlighted. Then in Section III the key findings of scholars interested in the context of discovery are noted. Finally, in Section IV two competing interpretations of the context of decision are identified. I conclude by suggesting that the rigid distinction between the context of discovery and the context of justification should not be sustained.
II. The Context of Justification

In many court cases all a judge has to do to defend a decision is to quote the rule that applies to the situation and summarize the facts of the case. These are the so-called ‘easy’ cases where a judicial decision can be apparently deduced from a general rule and relevant facts. Such decisions are considered to be legally justified. However, in other cases a judge must choose between competing rules or between rival interpretations of a rule. Here the decision could be controversial and the choice made by a judge must be explicitly legally justified. A judge is expected to give reasons and arguments supporting the decision. In turn, the arguments given to support a decision provoke the question “How good do the reasons and arguments have to be? Equivalently, “What criteria should be used to evaluate the adequacy of the reasons and arguments used by a judge to defend a particular decision?” The short answer is the claim that the reasons and arguments must be rational, which raises the question “What standards must be met in order for the justification of a legal decision to be considered rational? Numerous scholars have tackled this issue. Eveline Feteris 1999 conveniently divides scholars into three groups based on the elements that dominate their analyses and evaluations of legal justification. These are (1) the logical approach, (2) the rhetorical approach, and (3) the dialogical approach.

Scholars who take a logical approach to legal justification claim that legal argumentation must be formally valid and they have developed various logical systems to analyse and evaluate legal argumentation. Syllogistic logic, propositional logic, predicate logic, deontic logic, and dialogical logic have been used. The necessary criterion for a decision to be legally justified is that the argument must be capable of being reconstructed as a logically valid argument. Logic is used to make implicit arguments explicit and to test whether the decision follows from the arguments. A decision is justified if the decision follows from the legal rule and the facts. Of course, the legal rule must be a valid rule of the legal system and the facts must be proven.

For those scholars engaged in the rhetorical approach to legal justification the rationality of reasons and argumentation depends on whether an audience is persuaded to accept the arguments given in support of a particular judicial decision. If an audience accepts the arguments the justification can be considered rational. Consider one well known representative of the rhetorical approach to legal justification. For Chaim Perelman & Lucy Olbrechts-Tyteca legal justification involves showing that a decision is in accord with generally accepted legal starting points. They present generally accepted legal values and general legal principles as starting points of legal argumentation and they identify various argument forms that are used to persuade an audience that the legal decision is in accord with accepted starting points. Argument forms they identify are “argumentum a contrario, argumentum a simili, analogical argument, argumentum a fortiori, argumentum a completudine, argumentum a coherentia, psychological argument, historical argument, apagogical argument, teleological argument, argumentum ab exemplo, and the systematic argumen.” (Feteris 1999).

Scholars who take the dialogical approach to legal justification believe that the rationality of the argument depends on whether the presentation and defence of a judicial decision satisfies a set of rules that define and guide rational discussion. Theorists such Aulius Aarnio, Robert Alexy, Aleksander Peczenik, Jurgen Habermas, and Eveline Feteris present legal argumentation as a form of rational communication aimed at reaching consensus through dialogue.
For Habermas the adequacy of legal argumentation depends on the quality of the discussion in which a decision is defended. He sets out the conditions that must be met in order for a discussion to be rational: “(1) Everyone who can speak may take part in the discourse. (2) (a) Everyone may problematize any assertion. (b) Everyone may introduce any assertion into the discourse. (c) Everyone may express his or her attitudes, wishes, and needs. (3) No speaker may be prevented from exercising the rights laid down in (1) and (2) by any kind of coercion internal or external to the discourse.” If an agreement can be reached under these conditions - discussants treat each other as equals and do not stop each other from presenting arguments and criticisms - a decision would be considered legally justified.
Alexy shares this orientation. For Alexy a normative statement is justified if it is the outcome of rational discourse. He lists sets of procedural rules that must be satisfied if rational discourse is to be achieved. Not only must legal argumentation and judicial decisions satisfy the rules of general practical discourse, but they must also satisfy special rules that regulate legal discussions. A random selection of rules include: “Saturation – that is – a full statement of reasons – is required in every argument which belongs to the canons of interpretation.” “If a precedent can be cited in favour of or against a decision it should be so cited.” “Special legal argument forms must have the reasons for them stated in full – that is, they must achieve saturation.”
Peczenik and MacCormick, in particular, stress the point that for a judicial decision to be justified it must be justified on legal grounds and also on general rational grounds. The decision must make sense in the legal world and in the real world. The overarching point is that whatever the approach to legal justification, the scholar’s concern is with spelling out what it is that justifies a judicial decision.
III. The context of discovery

Accounts of legal reasoning have not always been dominated by analyses of the context of justification. Legal theorists have not always presumed there is a ‘rigid’ distinction between the context of discovery and the context of justification. And it has not always been the case that the ‘actual’ decision-making process of a judge is presumed to be unimportant, arbitrary, subjective, and non-rational. Among legal theorists, the American Legal Realists in the 1940s came the closest to identifying the context of discovery when they wrote about backward reasoning and identified five activities that comprised the judging process: (1) puzzling and brooding over a legal problem, (2) having hunches and intuitions concerning a just solution to the case, (3) checking and testing that tentative solution against legislation, decided cases, & anticipated consequences, (4) judging or deciding the outcome of the case, and (5) expressing that judgment orally or in written form. In fact, the Realists portrayed the judging process as a conscious and deliberate problem-solving process. Even though they stressed the non-logical and non-rational nature of hunches and intuitions they did not consider them to be arbitrary and irrational mental activities. Judges brooded over a particular case in order to discover a just solution.
The legal realists’ investigations of the context of discovery were part of an effort to improve the decision-making abilities of judges. Their rationale was that if the many factors that comprise and influence the judging process were better understood then the bias and prejudice of judges could be controlled and written legal opinions could be presented more honestly and openly. Jerome Frank’s view was that in order for judges to do their job well they needed a clear idea of what they were doing. He believed that the pretence and self-delusion of judges who thought they were merely borrowing law or applying the commands of an authority when they were, in fact, creating law would interfere with their quest for justice.
Since the 1940s a small number of legal theorists have been interested in the context of discovery, but only one person has tackled the discovery process in a systematic fashion. Drawing on the work of two philosophers – Bernard Lonergan and Philip McShane – on the nature of insight and judgment in mathematics and science Bruce Anderson 1996 identified and analyzed more than a dozen mental activities that play crucial roles in the legal decision making process: They are sense experience and memories, What-questions, direct insights, definitions and interpretations, Is-questions, reflective insights, judgments of fact, What-to-do-questions, practical insights, plans, What-should-be-done-questions, practical reflective insights, judgments of value, and decisions. His work stresses the importance of the role of asking questions and devising strategies to answer questions in both the discovery and testing phases of judicial decision-making. Not only does he identify the creative aspects of achieving insights, but he also identifies the creative dimension of testing legal interpretations and possible courses of action. Further, he argues that there is a connection between the various mental activities that comprise legal decision-making and legal expression. Particular mental activities correspond to particular types of expression.
Anderson argues that his analysis of the context of discovery supports the claim that whether or not a legal decision is justified depends on whether the judge performed at his or her informed best – that the judge paid attention of the relevant data, intelligently grasped links among the data, made reasonable judgments grounded on sufficient evidence, made responsible value judgments, and reached a decision consistent with his or her value judgment about what is the most suitable solution to the legal problem. By contrast, the ideal of legal justification for those scholars focused on the context of justification is the ideal of adequate expression acceptable to the legal profession. But from the perspective of the context of discovery what scholars should have in mind is the adequacy of the clusters of questions, insights and judgments that give rise to adequate expression. The problem with focusing primarily on the adequacy of expression as the key criterion for justification to be that it may lead a reader to dispense with relevant questions about the implications and suitability of the outcome of a case. Further, the focus on expression and the neglect of mental activities is unlikely to help judges achieve sufficiently suitable insights, judgments, decisions, or to help readers towards understanding and evaluating judicial decisions.
IV. The context of decision

Two competing versions of the context of decision can be identified.
In the context of justification a decision is something that takes a written form, a legal text. In other words, a legal decision is the written text.
Also, the textual expression must be tested to determine whether it is legally justified. To be considered legally justified the expression either must be capable of being translated into a logical form, or the expression must be accepted by an audience, or the expression must be the outcome of a discussion that has not broken a set of rules and procedures governing the conduct of discussions.
By contrast, in the context of discovery a decision is a particular mental activity that consents to or refuses to perform a particular course of action. Decision has a particular place in a sequence of mental activities. Decision confers actuality on a plan of action that otherwise would not occur. A decision ends practical problem-solving. It is one thing to know what to do, and it is another thing to do it. Decision brings an end to practical reflection. For instance, a judge ends the practical problem-solving process when the choice is made to sentence the accused to ten years in prison. In the context of discovery expression is something that is quite different from decision.
V. Conclusion

The clear distinction between discovery and justification is being gradually blurred as legal philosophers and legal theorists become interested in the context of discovery. Undoubtedly, interesting and important insights into all aspects of legal argumentation, legal justification, and judicial decision-making will emerge as we move beyond the separation of discovery and justification.
Annotated bibliography

On the Relation between the Context of Justification and the Context of Discovery see:

B. Anderson (1995). The Case for Re-Investigating the Process of Discovery. Ratio Juris, 336-358.

Z. Bankowski (1988). The Jury and Reality. In Findlay and Duff, The Jury Under Attack. Butterworths, Edinburgh.

J. Bengeotxea (1993). The Legal Reasoning of the European Court of Justice. Clarendon Press, Oxford.

E. Feteris (1999). Fundamentals of Legal Argumentation: A Survey of Theories on the Justification of Judicial Decisions, Kluwer Academic Publishers, Dordrecht.

N. MacCormick (1978). Legal Reasoning and Legal Theory. Clarendon Press, Oxford.

E. Pattaro (2005). An Overview on Practical Reason in Aquinas. 48 Scandinavian Studies in Law: Perspectives on Jurisprudence. Stockholm, 251-268.

R. Wasserstrom (1961). The Judicial Decision. Oxford University Press, Oxford.

J. Wroblewski (1992). The Judicial Application of Law. Kluwer Academic Publishers, Dordrecht.

On the Context of Justification see:

A. Aarnio (1987). The Rational as Reasonable. Reidel Publishing Company, Dordrecht.

R. Alexy (1989). A Theory of Legal Argumentation: the Theory of Rational Discourse as Theory of Legal Justification. Clarendon Press, Oxford.

G. Christie (2000) The Notion of an Ideal Audience in Legal Argument. Kluwer Academic Publishers, Dordrecht.

J. Habermas (1990). Moral Consciousness and Communicative Action. MIT Press, Cambridge.

J. Habermas (1996). Between Facts and Norms. MIT Press, Cambridge.

J Hage (1997). Reasoning with Rules: An Essay on Legal Reasoning and its Underlying Logic. Kluwer Academic Publishers, Dordrecht.

M. Kiikeri (2001) Comparative Legal Reasoning and European Law. Kluwer Academic Publishers, Dordrecht.

E. Feteris (1999). Fundamentals of Legal Argumentation: A Survey of Theories on the Justification of Judicial Decisions, Kluwer Academic Publishers, Dordrecht. This book is an excellent place to start for anyone interested in the context of justification. In that book she summarizes, compares, and evaluates the various theories of legal justification.

A. Lodder (1999). DiaLaw: On Legal Justification and Dialogical Models of Argumentation. Kluwer Academic Publishers, Dordrecht.

N. MacCormick (1978). Legal Reasoning and Legal Theory. Clarendon Press, Oxford.

A. Peczenik (1989). On Law and Reason. Kluwer Academic Publishers, Dordrecht.

A. Soeteman (1989). Logic in Law. Kluwer Academic Publishers, Dordrecht.

On the Context of Discovery see:

B. Anderson (1996). “Discovery” in Legal Decision-Making. Kluwer Academic Publishers, Dordrecht. This is a good starting point for anyone interested in the context of discovery. It summarizes, illustrates, and critiques various approaches to the discovery process and then presents a fresh view of the discovery process.

St. Thomas Aquinas (1970 edition). Psychology of Human Acts: 1a2ae.6-17. Ed. Thomas Gilby, Summa Theologiae. Blackfriars, London. This is an amazing nuanced introspective analysis of practical reasoning and decision-making.

J. Dewey (1925). Logical Method and the Law. 10 The Cornell Law Quarterly.

J. Frank (1949). Law and the Modern Mind. Stevens & Sons, London.

O.W. Holmes (1881). The Path of Law. Boston.

J. Hutcheson Jr. (1929) The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision. 14 The Cornell Law Quarterly, 274-278.

B. Lonergan (1957). Insight: A Study of Human Understanding. Longmans, Green & Co, London.

P. McShane (1975). Wealth of Self Wealth of Nations: Self-Axis of the Great Ascent. New York, Exposition Press.

K. Popper (1959). The Logic of Scientific Discovery. Hutchinson, London.

M. Radin (1925). The Theory of Judicial Decision: Or How Judges Think. 11 American Bar Association Journal, 357-362.