ABSTRACT
In seeking to ascertain the unknown from the known, a judicial tribunal is called on to use, apply, reflect upon, and compare a great body of facts and ideas of which it is already in possession, and of which no particle of ‘evidence’, strictly so called, is ever formally presented in court. And then, in addition, it has to be put in possession of new material. It is this necessity, that of furnishing new matter, which gives occasion for rules of evidence. On the other hand, the function of scrutinizing the material which it has once got, of observing its implications, and the effect of one part on another, of comparing and inferring, does not belong to the region of the law of evidence. To the hungry furnace of the reasoning faculty the law of evidence is but a stoker. Let it be distinctly set down, then, that the whole process of legal argumentation, and the rules for it, essential as these are, and forever pressing upon the attention, are mainly an affair of logic and general experience, not of legal precept. I say mainly, because the reasoning process, in its application to particular subjects, gets always a tincture from the subject matter. Undoubtedly there are rules of legal practice and procedure, qualifying and restraining the free processes of reason; so that it is a proper qualification, when we use the phrase legal reasoning; not because, as compared with reasoning in general, it calls into play any different faculties or involves any new principles or methods, or is the creature of technical precepts; but because in law, as elsewhere, in adjusting old and universal methods to the immediate purposes in hand, special limitations, exclusions, and qualifications have to be taken into account. In particular and emphatically, in legal reasoning, such peculiarities spring from the practical aims of a court of justice and the practical conditions of its work; eg from the nature of such a tribunal as a jury, and the exigencies of time, place, and subject matter which control its operations. In dealing with litigation, courts are not engaged in an academic exercise. With them the search for truth is not the main matter; their desire to know this, and their ability to use it, are limited by the requirements of their main business, namely, that of awarding justice, ie awarding it so far as they may, under rules of law, and according to established usages and forms ... And again, whether it be out of regard to the general want of time and convenient opportunity; or to the nature of the questions discussed, and the ordinary methods of mankind in judging of the practical problems of life and business, and the practical impossibility of running an inquiry out into fine details; or to the nature of the popular tribunal, the jury; or for whatever reason; we have principles of exclusion which limit the inquiry, and so the evidence, to matters that have a clear and obvious bearing and a plainly appreciable weight, as contrasted with what is slight, conjectural, and remote; and to matters which
do not unnecessarily tend to complicate and confuse the determination of the issue. These I call principles, rather than rules, because of their necessarily indeterminate form, and their appeal to the general sense and judgment of the tribunal; as contrasted with definite legal rules, in the application of which it is reasonable to expect a near approach to unanimity among competent minds. We have no treatise and no chapters of treatises that deal separately and specifically with the topic of legal reasoning in the ascertainment of facts. Copious books on evidence, on procedure, and on the many branches of substantive law, we have, but none upon the nature and methods of that art by which all the rules of all these various subjects are applied and developed. It is not my purpose now to furnish one, but only to bring this subject out into the light, to mark its characteristics, and to emphasize its separate place and distinctive character. Why is any such exposition needed? Certainly not, as I have said, because legal reasoning differs in any fundamental respect from any other reasoning, or because lawyers have any peculiar organs or methods for tracking and apprehending the truth. What is called the ‘legal mind’ is still the human mind, and it must reason according to the laws of its constitution ... But while legal reasoning, at bottom, is like all other reasoning, yet a thousand practical considerations come in to shape it. There is one grave reason for discriminating this topic and remarking its characteristic methods and its separate place which has been too little observed; namely, that it has a tendency to run over and mingle with other subjects, and to distress all attempts to clarify them. In particular this has happened with the subject of evidence. Rules, principles, and methods of legal reasoning have taken on the color and used the phraseology of this subject, and thus disguised, have figured as rules of evidence, to the perplexity and confusion of those who sought for a strong grasp of the subject. A bastard sort of technicality has thus sprung up, and a crop of fanciful reasons for anomalies destitute of reason, which baffle and disgust a healthy mind ... … [T]he great characteristics of the art of reasoning and the law of thought still remain constant. As regards the main methods in hand, they are those untechnical ways of all sound reasoning, of the logical process in its normal and ordinary manifestations; and the rules that govern it here are the general rules that govern it elsewhere, the ordinary rules of human thought and human experience, to be sought in the ordinary sources, and not in law books. And so a knowledge of these processes and methods is presupposed in all judges and lawyers. When Abraham Fraunce, therefore, the friend of Sir Philip Sidney, published, in 1588, The Lawyer’s Logic, it turned out to be only a rather novel sort of treatise on the general subject, illustrated by examples from Plowden’s recent volume of 1571, and other law books. He had first written his book under the name of The Shepherd’s Logic, taking his example from Spenser’s poem, ‘The Shepherd’s Calendar’, published in 1579. The illustrations differed; the thing illustrated was the same. We may dismiss, then, any notion that legal reasoning is some non-natural process by which the human mind is required to infer what does not logically follow. Expressions that import this are to be regarded as mere phrases for what may be and should be accurately stated. The technicalities of legal reasoning merely grow out of the material, the subject matter, in which it works.8
