- When it produces results that seem to conflict strongly with what we otherwise believe to be fair, just, and reasonable; or, to put it another way,

- When it produces results that we consider to conflict with what we believe to be the “intent and purpose” of the exercise of the rule-making power of the law.

To avoid such predicaments, leading public policy management schools today take what they deem “a flexible and interdisciplinary approach” to “teach students to look at societal problems from many different perspectives, using technology, quantitative and qualitative analysis and group dynamics to arrive at innovative solutions.” Their “curriculum focuses on areas that include quantitative analysis, modeling, economics”.23

Agency managers trained in this manner are thus well equipped to draft their own enabling and subsidiary legislation. But far too often law to these public policy managers consists of citing to literal readings of passages, they doubtless drafted to suit, as absolute. However, the role of judicial review in the traditional common law sense (not solely review of constitutional validity, as commonly understood in the United States, but of concern for fraud and abuse and of malfeasance, misfeasance, and nonfeasance) plays little if any role in their curriculum. It has been generally frustrated in American law, and is subjected to undue costs in commonwealth countries. Here, again, a well-programmed computer is preferable to an agency administration that looks only to language that suits its own advantage.

Yet, the ideal of judgment and decision-making in Western legal tradition belongs primarily to the courts. It was never intended to be restricted to writing the perfect statute—or limited to official policy management. The discipline of law requires legal reasoning to be consistent with the structure of a total system, governed not only by principles of law, written and unwritten, but also by consideration of the role of intent and purpose, equity and discretion.

American lawyers all acknowledge the revered words of Oliver Wendell Holmes, Jr., that “the life of the law has not been logic” but “experience”. In the sense that Holmes meant this to apply to “what a court will do in practice,”24 we all concur. But that is not to say that the converse is also true—that is, that law is not logical. What this paper will attempt to demonstrate is that indeed law is subject to the logic of its discipline in the sense where by “law” we mean not simply enacted rules of law, or particular legal decisions, but the nature of the relationships between laws and principles that are manifested in the entire system of the law as a whole.

“Experience” counts in qualitative analysis in decision-making and in giving judgment. Yet, that step only arises once one has gone through the logical steps of legal analysis. There are also basic observations, or, as I have said, “common sense” propositions, which we will see govern how rules of law apply. I have attempted to collect a number of these propositions elsewhere, with supporting case law, for another purpose—and, there is no need to enumerate them all here. However, there is one basic proposition of legal dynamics that we must take as a fundamental point of departure: Every lawyer must acknowledge that “all of the law is law all of the time.” #p#分页标题#e#

To put this proposition in a less grandiose way, no one who is concerned with the operation of rights or prohibitions in the law can simply point to one favorable provision of the law alone, and ignore everything else that modifies, conditions, or limits the chosen statement of the law in question. There are always interested parties, legislators, or enforcement officers, who may hang on the words of a line of statute or of a particular rule of law that fits their argument. But, no lawyer can deny that all the rest of the law also applies—not only elsewhere, but also as appropriate in its effect upon the one chosen sentence of statute or particular rule of law in question as well.

In this sense, the proposition given is not part of the law itself, but logically expresses what the selected provision of the law says and does—that is, the basic conditions of the system governs how any single provision of the law itself applies. The same conditions apply in the law as in the logic of any other system of reasoning. It is, therefore, a basic condition of the system of the law that the law cannot abandon any more than the practitioners of the disciplines of mathematics or physics or chemistry can simply apply one “law” of their discipline, and ignore everything else.

The form of cognitive investigation that I propose is, therefore, not one of radical experiment with primal neural or instinctual drives. Rather, this is an exploration of what takes place at a higher level of intellectual sophistication, where the protagonists are obliged to deal with the legacy of social moral values, how statute is and must be interpreted within its framework, and how both the structure of the discipline, and the body of written and unwritten law, impinges one upon the other. Legal reasoning properly must account for all its elements, and must also be consistent with the structure of a total system.


The Law is, however, not simply a closed system. Exercise of judgment within confined spheres cannot be neglected. However, the structure of the system also involves procedural values that can result in differences in outcomes. Adherence to the “English” or the “American rule”, can, for example, sometimes condition how results must be affected. It is all the more intriguing, therefore, when one discovers that English or American courts have chosen to apply what appears to be the rule of the opposite jurisdiction, where correspondingly reverse outcomes must surely have been predictable and intended.25

Resolution of such conflicts and paradoxes is then at the heart of efforts at Judgment and Decision-Making in the Discipline of Law, but occurs at two levels:

- At a level possibly explainable as affected by practical social or political choice. Here problems arise such as: “Can one allow a patent for a form of living matter?” (something long precluded in the logic of patent law decision-making because a life form cannot be invented) where it merely seems necessary for practical economic reasons;26 or, “Can one allow reverse engineering (something expressly prohibited by statute and/or licensing agreements), because it appears ‘necessary’ in order to reconcile use of software in two incompatible systems of hardware?”27 #p#分页标题#e#

-At a higher level, however, one is forced to confront the question of how one justifies, or declines to justify, more fundamental, but more far-reaching questions: “Can one reach a judgment contrary to precedent, in a system, such as the common law, where one is theoretically bound by precedent?” where such precedent has been highly influential throughout our social or economic life, but where it arises from a decision made a hundred years ago that one would not attempt to justify for the same reasons today.28


In brief, what I propose here is an investigation into an area of cognitive understanding, which is not simply at the basic level of social economic choice, but, more significantly, at the level of reasoned judgment and decision-making within a structured discipline bound by legal tradition, and a very extensive fabric of codified statutes and case law.

“Your writing is not legal theory.…It is about legal theory,” one reviewer was at pains to tell me. I have no quarrel with that. The modest ambition here is not to propose a new or refined statement of legal theory. Rather, it is only concerned with the consequences of selective reading of particular sections of black-letter law without regard for everything else that is black-letter law—and established legal principle. It is the concern that an entirely different society emerges—an entirely different quality of life prevails—where administration and enforcement of law follows only the regulators’ concern for efficient management, and abandons what we all probably also recognize implicitly as the more ameliorating characteristics of law as a system.

That there may theoretically be recourse to review by a relatively impartial judicial institution does not provide a ready or effective remedy for one-sided or unnecessarily rigid interpretation of laws. If the concept of a society of law means anything, it cannot mean that we are constantly obliged to go to court. The only meaningful recourse in a rational system is not judicial review and litigation, but appeal to reasonableness—of those charged with administration and enforcement, as well as those judicially concerned with interpreting black-letter rules. For reasonableness to prevail, there must be a common understanding of at least the logic of the law—as it applies in support of the regulatory system, but also as it applies in favor of the rights of the individual. Hopefully the following discussion will do its share in contributing to such understanding