Canons of Confabulation

19 Feb

Knowles and Ditto’s article on Preference, Principle, and Causistry – detailed elsewhere on this blog – bears a striking resemblance to Karl Llewellyn’s famous critique of the use of canons of construction in judicial opinions.  Given the title of this blog, how can we not explore such a clear intersection of the mind sciences and the law?

Karl Llewellyn

Canons of construction are interpretive tools invoked by judges to discern the meaning of statutes.  To couch this in Knowles and Ditto’s terms, the universe of canons exists as a menu of principles upon which judges can draw in seeking guidance in matters of statutory interpretation.  For example, imagine a statute that allows tenants to withhold rent upon the discovery of “rats, mice, termites, or other pests.”  The ejusdem generis (“of the same kind”) canon teaches that “other pests” refers to pests of the same kind as those listed before it; thus, a tenant could not withhold rent due to an annoying next-door neighbor who could also be described as a “pest” in the dictionary sense of the word.

This formulation seems to imply a rational, objective process of decision-making: judges confronted with an ambiguous statute resolve that ambiguity by selecting the applicable principle (i.e. canon), applying it to the statute, and, voila, a resolution emerges (ambiguity -> principle -> answer).  Llewellyn, however, like Knowles and Ditto, is not quite so optimistic about the decision-making process.  Llewellyn argues that there are two opposing canons on almost every point, and as such, the canons serve as (in the words of Knowles and Ditto) post hoc intellectual justifications of one’s initial intuitions. Choosing which canon to apply is not the objective, detached process that the above description would suggest.  Instead, judges determine the answer first, guided by their internal preferences, and then select the canon capable of justifying the conclusion they find most emotionally satisfying (ambiguity -> answer -> principle).

More analysis and implications of this theory, right after the jump.

On this view, then, the canons are widely utilized not for their helpfulness in ascertaining answers, but rather for their utility in justifying answers.  Why do judges go through this dance, then?  Knowles and Ditto point to a psychological need to view one’s self as objective and rational: “we are clearly sensitive to the plausibility of our beliefs and work to maintain what some researchers call an ‘illusion of objectivity’ about the nature of our judgments.”  As my fellow blogger put it, we all want to be the hero of our own story, and as such, we do not want to acknowledge that our decision-making process may be driven by emotion and intuition rather than consistent, objective principles.  Additionally, notions of the role of the judiciary as an objective branch of government that interprets (rather than creates) the law requires, at the very least, an appearance of objectivity.

How, then, do judges convince themselves that they are being objective when, according to Knowles & Ditto, their selected principles/canons are mere confabulations?  The answer lies in the process – judges do indeed look to principles to make their decisions, but they go about the process in a biased fashion such that certain principles are ‘favored’ in a given judgment context because they are consistent with, and provide intellectual support for, the conclusion that is most preferred in that context.  That is to say, judges may attempt to follow the first formulation of the decision-making process (ambiguity -> principle -> answer), but when searching the menu of principles/canons, will subconsciously place more value on the ones that support their favored outcome.  Through this process, judges can “select the [canon] capable of justifying the conclusion they find most emotionally satisfying—while at the same time preserving the view of self as a logical and well-meaning thinker.”

Antonin Scalia: Not a fan of legislative history

Does this insight lead to the inescapable conclusion that the use of canons in statutory interpretation is inherently invalid?  Not exactly.  First, abolishing the use of canons would do nothing to solve the “problem” of results-based reasoning—judges could simply rely on other tools, such as legislative history, to provide post hoc rationalizations of their preference-based decisions.  Legislative history is subject to the same critiques as the canons of construction; namely, that there is often legislative history support both sides of a debate, allowing judges to, as Justice Scalia put it,“look over the heads of the crowd and pick out your friends.”  This argument is somewhat defeatist in that it seems to concede that the human decision-making process is inherently flawed.  However, decision-making on the basis of intuition is not inherently invalid, and may actually “reflect adaptive insights accumulated over the course of human evolution.”

Further, our system requires judges to do more than simply declare “yes” or “no”.  Federal Rule of Civil Procedure 52(a) requires judges to explicitly state their findings of fact and conclusions of law; this rule has three important ramifications to our topic.  First, the very act of committing their reasoning to paper may reveal a judge’s logical inconsistency or suboptimal use of a canon to him or herself.  Second, writing an opinion allows dissenting judges to file their own opinions in response; these dissents may reveal stronger arguments to judges in the majority.  Finally, our appellate system allows incorrect legal conclusions made at the lower levels of the court system to be corrected by the high courts.  This doesn’t entirely overcome the defeatist position, as having many biased decision-makers arguing about differing biased decisions solves very little in a search for an objective truth, but that stance presupposes the very existence of an “objective truth” – a topic far beyond the scope of this post.  For now, we can take solace in the fact that even if Knowles and Ditto are correct in that the individual decision-making process isn’t quite as objective as we’d like, any judge’s individual decision must survive several rounds of checks and balances before becoming law.

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4 Responses to “Canons of Confabulation”

  1. Jon Hanson February 14, 2011 at 1:12 pm #

    Nice! Very glad you brought in “Canons of Construction” here. I’ve argued with Ron Chen that legal realists and other legal scholars with a critical edge are to legal reasoning what social psychologists are to reasoning in general (at least in this culture,e tc.) — and there are quite a few parallel insights, including the one you highlight.

    Your point about layers of legal reasoning may, as you indicated, provide little consolation to those who feel that the casuistry is itself layered, that the preferences of those with the most power exert the most influence over the prevailing principles, and that adding layers of principles simply fortifies the inaccessibility and legitimacy of the outcome.


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