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Logic and Rationality in Legal Reasoning

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Logic and Rationality in Legal Reasoning UNIVERSITY OF NAIROBI f a c u l t y of a r t s DEPARTMENT OF PHILOSOPHY LOGIC AND RATIONALITY IN LEGAL REASONING BY MAGERO JACOB - REG. NO. C/80/8973/2001 A 1 HESIS SUBMITTED IN FULFILLMENT OF THE REQUIREMENT FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY OF THE UNIVERSITY OF NAIROBI.' SUPERVISORS: 1. PROF. JOSEPH MAJOR NYASANI UNIVERSITY OF NAIROBI CAST AFRICAN* COLLECTION 2. DR. SOLOMON MONYENYE Unrvarwty <* NAIROBI Library lilll III II 0472850 7 2 DECLARATION This thesis is my own original work and has not been presented for any award in any other university. This thesis has been prepared and presented in fulfillment of the requirement for the award of a Ph.D degree o f the Universitv of Nairobi under our supervision and approval as university supervisors. TABLE OF CONTENTS 1-0.0 CHAPTER ONF INTRODUCTION STATEMENT OF THE PROBLEM OBJECTIVES OF THE STUDY JUSTIFICATION AND SIGNIFICANCE OF THE STUDY LITERATURE REVIEW THEORETICAL FRAMEWORK HYPOTHESIS METHODOLOGY 2.0.0 CHAPTER TWO 64 RATIONALITY: The Central Tenets and an Evaluation of The Impact of Science on its Conception and Definition ........... 3.0.0 CHAPTER THREE 105 TOWARDS THE ARTICULATION OF A WIDER AND MORE COMPREHENSIVE CONCEPTION OF RATIONALITY 105 4.0. 0 CHAPTER FOUR ........................................... 119 LOGIC: The Central tenets, Assumptions and the Goal of Systematicity .. 119 5.0. 0 CHAPTER FIVE ......................................... 152 LOGICAL FOUNDATIONS OF LEGAL REASONING IN THE LIGHT OF RATIONALITY ................................................ 152 LEGAL POSITIVISM AND THE THEORY OF NATURAL LAW ............... 152 THE LAW IN ITS VARIOUS CONCEPTIONS ......................................... 154 LEGAL REASONING ....................................... 178 THE IMPORT OF LOGIC IN LEGAL REASONING AND THE COMPATIBILITY OF SUCH IMPORT WITH THE WIDER CONCEPTION OF RATIONALITY ................................ 187 THE ONTOLOGICAL AND COGNITIVE SIGNIFICANCE OF LOGIC AND THE RELEVANCE OF SUCH SIGNIFICANCE TO RATIONALITY ................................ 233 6.0. 0 CONCLUSION AND RECOMMENDATIONS .... 243 CONCLUSION 243 RECOMMENDATIONS 249 7.0. 0 BIBLIOGRAPHY 253 3 ABSTRACT This study attempts to show that the positivistic use of logical objectivity epitomized in constrained inference and consequence relations, as a model for rationality is a narrower conception of rationality. The study argues that such a conception only holds, and relatively so, in formal aspects of discourses in science. The study marshals the argument that an absolute exclusion of sentiments and morality from human existence, the implication of the positivistic ideal o f rationality, is an arbitrary and unwarranted reductionist undertaking that begs the question as to what rationality is. The postulation of the study is that sentiments and morality are irreducible aspects of human social life and any conception and ascription of rationality to humans must ipso facto take cognizance of these aspects. It thus suffices that contrary to positivistic thinking, the wider and more comprehensive conception of rationality is one which transcends mere logic and includes morality and sentiments in its theoretical construct. The study argues that the positivistic conception, though valid in the light of cognitive dictates and the scientific assumptions of causality and the uniformity of nature, transgresses ontological confines and imperatives. Such a conception is out o f line with human nature and the essence of human social life. It can only apply to humans secundum quid but not simpliciter because it at best merely epitomizes artificial intelligence. Therefore, the positivistic conception of rationality relatively defines scientific rationality but should not be taken to define rationality in general. Following the positivistic ideal of logical objectivity, legal positivism excludes morality and sentiments from its conception of the law. However, the study attempts to rebut this thinking on grounds that morality and sentiments are irreducible aspects of human social life. If man is a rational 4 being and morality and sentiments are irreducible aspects of man. the absolute exclusion of morality and sentiments from the conception ot the law by virtue of their exclusion from the conception of rationality is argued to be invalid, contradictory and reductionist. The study shows that rationality goes beyond mere reasoning or argumentation and is therefore more complex than logic can sufficiently and invariably capture. This is illustrated in legal reasoning where the appropriate decision may demand a deviation from the logical expectation of the relevant legal provisions. Also, in "hard cases . the gray areas of the law, and in case law or precedent, a choice between competing principles is sometimes the desirable basis for judgment. In case law, a choice between competing conclusions depending on the choice of cases to illustrate analogies or disanalogies by the prosecution or the defense characterizes legal adjudication. Such competing principles, arguments and conclusions may rest on grounds of equal logical strength. In this regard, the significance of logic is limited to internal consistency and coherence. This is argued to constitute the internal standard of rationality. The study however postulates an external standard. It is at this level that morality and sentiments suffice. This level exposes the relative incompleteness and unpredictability of reality which cannot be harmonized with the completeness and predictability assumed by logic. Hence the theoretical and practical limitation o f positivism in general and legal positivism in particular. The study postulates a conception of rationality that is argued to be invariably in harmony with ontological reality and comprehensively captures human social life. This is achieved by invoking morality and sentiments where it is relevant and to propotionate extents. It is also achieved by upholding flexibility and openness in reasoning. Such flexibility and openness is argued to reconcile with the relative unpredictability and incompleteness of reality which is transgressed by mere logic. Such flexibility 5 and openness also checks the fmitude and fallibility of human prediction and anticipation, which check is not envisioned and thus not envisaged in the positivistic conception of rationality. 6 1.0.0 CHAPTER ONE INTRODUCTION This study has been done against the background and in response to the positivistic and predominantly western conception of rationality in terms of logic [cf. Boelen, 1975: 310-313]. This is what D.A. Masolo (1995) has described as logocentricism in his work, African Philosophy in Search o f Identity. In this conception, the thought is that rationality is mutually exclusive with sentiments (or emotions). Absolute objectivity becomes the mark o f rationality in this line of thinking. This level and extent of objectivity manifests itself in impersonal, impartial blind disinterest. It is in this regard that there is an absolute exclusion o f value judgment in this conception of rationality. It can therefore be appreciated why (apart from sentiments or emotions) ethics and morality cannot be accommodated in this positivistic conception of rationality. Logic is however the ultimate model for this sort of objectivity and it is in this regard that rationality is equated with logicality. Here logic is equated with rationality such that to be logical is to be rational and to be rational is to be logical simpliciter (without qualification). However a question arises as to the extent to which such thinking sufficiently and comprehensively exhausts the conception of rationality. Logic calls for absolute objectivity that spells such impersonality that such aspects as sentiments (or emotions) and morality (or ethics) cannot be captured. Sentiments (or emotions) and morality (or ethics) are however argued in the study to be irreducible aspects that give meaning and define human life. They are therefore argued to guide and 7 control human behaviour and social life. A conception of rationality that absolutely fails to take cognizance ot sentiments and morality by emphasizing mere logical objectivity is thus argued to be reductionist, invalid and narrow. Logic also calls for completeness, certainty and predictability that is not in harmony with ontological reality given the relative variability, incompleteness and unpredictability of reality (especially in human social life). Such a positivistic conception of rationality is therefore argued in this study to beg the question as to what rationality actually is. The begging of the question follows from the fact that in their quest to discern scientific rationality, scientifically minded philosophers and philosophically minded scientists focused their attention on the formal aspects o f scientific discourse and what was evolved as constituting scientific rationality (in formal axiomatic terms) was extended from the realm of science to define rationality in general [cf. Lauden (1977: 123), Putnam (1985: 103-126, 150-200), Hume (1972: iii), Nozick (1993: xiii-xiv), Thomson (2000: 8-11), Mclaughlin (1970: 271-278), Mullen (1970: 618-619), Bushkovitch (1970: 307-311)]. Thus, it at best constitutes a narrower conception of rationality. Irrationality is thus construed in the study to consist in irrelevant and excessive invoking of sentiments or emotions or a complete rejection of them even when it is necessary to admit them. It is also construed to consist in an absolute rejection of moral considerations
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