Reminds me of part of a comment on Moldbug’s blot, by Nick Szabo:
[legal reasoning]
It’s a disciplined and competitive (dialectic, in the true original sense of that term) use of analogies, precedents, and emergent rules, far more sophisticated than normal use of analogy and metaphor. I learned it my first year of law school and it’s a radically different kind of thinking I had never encountered before in school. The Bayesian bloggers seem to be completely oblivious to it, and to the tremendous value of tradition generally. That makes them, from my POV, culturally illiterate and incompetent to opine on law or politics. Yes, legal training also made me stuck up. :-)
If you can’t afford law school, you can learn most of what you need to know from Legal Method and Writing by Charles R. Calleros and a first year law school common law casebook (Torts, Property, or Contracts).
The extremely short description of legal or scholastic reasoning is to think of a proposition or dispute as Schrodinger’s Cat, both true and false at the same time, or each party at fault or not at the same time, or the appropriate dichotomy. Then gather all the moral or legal disputes that are similar to this one. Argue by analogy for each side both from the facts of those prior disputes and from the informal rules (“holdings”) implied by the decisions resolving those disputes. This kind of reasoning allows a lawyer to anticipate an opponent’s as well as their own argument in a case, and allows a judge to appreciate both sides of an argument, the latter also crucial, but often absent, in reasoning in about politics, morals, and the more complex areas of science, which in absence of this kind of discipline is dominated by confirmation bias and lack of understanding of other points of view.
Law also has a sophisticated set of qualitative probabilities I’ve blogged on, which imply not just degrees of truth but various aspects of gathering evidence, burdens of proof, and so on. The scientific method derived in large part from the Continental law of evidence, with which Galileo, Leibniz, etc. were intimately familiar having studied law. But legal reasoning, or scholastic reasoning as it used to be known, is still capable of covering a far wider swath of the human experience than scientific reasoning which is really just a special case and applies well only to hard evidence or the hard sciences.
I’ve been studying the history of common law lately due to Nick’s influence, after which I’m gonna read the book he recommended. I notice that his description of legal reasoning is very similar to how I use my chess subskills for rationality.
The extremely short description of legal or scholastic reasoning is to think of a proposition or dispute as Schrodinger’s Cat, both true and false at the same time, or each party at fault or not at the same time, or the appropriate dichotomy. Then gather all the moral or legal disputes that are similar to this one. Argue by analogy for each side both from the facts of those prior disputes and from the informal rules (“holdings”) implied by the decisions resolving those disputes. This kind of reasoning allows a lawyer to anticipate an opponent’s as well as their own argument in a case, and allows a judge to appreciate both sides of an argument, the latter also crucial, but often absent, in reasoning in about politics, morals, and the more complex areas of science, which in absence of this kind of discipline is dominated by confirmation bias and lack of understanding of other points of view.
This is a moderately reasonable model of litigation, but it isn’t complete. For example, Thurgood Marshall litigated separate-but-equal in the law school context specifically because every judge has a gut feeling of how to compare law schools, which just isn’t true about other educational institutions. In law school, I heard the apocryphal story that the law for the State of Texas argued that the new segregated law school was just as good as UT Law School, and Justice Clark—a graduate of UT—passed a note to a colleague that read “Bullshit” That’s clever lawyering and has nothing to do with arguing from precedent.
Further, not all law is litigation. The legislature empowered to make new laws that have no relationship to old laws. In short, there’s a fair amount more to the practice of law than reasoning by analogy, even if reasoning by analogy is an important skill for a lawyer.
Reminds me of part of a comment on Moldbug’s blot, by Nick Szabo:
I’ve been studying the history of common law lately due to Nick’s influence, after which I’m gonna read the book he recommended. I notice that his description of legal reasoning is very similar to how I use my chess subskills for rationality.
This is a moderately reasonable model of litigation, but it isn’t complete. For example, Thurgood Marshall litigated separate-but-equal in the law school context specifically because every judge has a gut feeling of how to compare law schools, which just isn’t true about other educational institutions. In law school, I heard the apocryphal story that the law for the State of Texas argued that the new segregated law school was just as good as UT Law School, and Justice Clark—a graduate of UT—passed a note to a colleague that read “Bullshit” That’s clever lawyering and has nothing to do with arguing from precedent.
Further, not all law is litigation. The legislature empowered to make new laws that have no relationship to old laws. In short, there’s a fair amount more to the practice of law than reasoning by analogy, even if reasoning by analogy is an important skill for a lawyer.