Abstract
The oldest debate in jurisprudence is that over whether law derives from eternal principles, God-given or inherent in the universe, or is simply a man-made device fashioned of experience and expediency, warped and shaped by self-interest, altruism and conflicting views of how the world functions. Chaim Perelman’s theory of jurisprudence could be seen as a logical outgrowth of that ancient argument insofar as he attempts to reconcile those two themes and show how they have complimented each other by creating a dialectic which produces better decisions than either one could on its own. In this paper we shall briefly summarize the theory that Perelman sets forth in “The Rational and the Reasonable”,1 critique it and then suggest some modifications that we consider appropriate.
Late Professor of Anthropolocy and Adjunct Professor of Law, the Ohio State University. Dr. Hughes died February 18, 1985. At the time of his death this manuscript was in rough draft form and the authors had agreed upon substantial revisions, which were made by Laughlin. Therefore, while many of Dr. Hughes’ ideas are embodied in the manuscript Laughlin takes full responsibility for errors and omissions.
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Notes
Chaim Perelman, ‘The Rational and The Reasonable,’ in Rationality Today, ed. Theodore F. Geraets (Ottawa, Canada: The University of Ottawa Press, 1979), pp. 213–24.
Perelman, ‘Rational,’ p. 215.
Perelman, ‘Rational,’ p. 217.
The Random House Dictionary of the English Language, Unabridged Edition (Random House, New York, 1970).
Geraets, Rationality Today, pp. 221–222.
For example, in Hodel v. Indiana, 101 S. Ct. 2376 (1981) the United States Supreme Court reversed a District Court and upheld the Federal Surface Mining and Reclamation Act. The Court stated the constitutional rule as follows: “The pertinent inquiry therefore is not how much commerce is involved but whether congress could rationally conclude that the regulated activity affects interstate commerce,” p. 2383. The Court then alluded to the name of the test in indicating how it would hold, “… (W)e have little difficulty in concluding that the Congressional finding in this case satisfies the rational basis test. ” Id. After reviewing the legislative findings of fact and the regulatory scheme the Court said, “(W)e conclude that the Congress acted reasonably in adopting the regulatory scheme contained in the Act,” p. 2385. (Emphasis added)
Gareats, Rationality Today, pp. 219–229. See also James L. Golden and Josina Makau, ‘Perspectives on Judicial Reasoning’ in ed. Ray McKerrow, Explorations in Rhetoric: Studies in Honor of Douglas Ehninger (Chicago: Scott Foresman Company, 1983), pp. 167-168. K Page Keeton, Dan Dobbs, Robert Keeton and David Owen, Prosser and Keeton on Torts (West, St. Paul, Fifth Ed., Lawyer’s Ed., 1984), pp. 173-193.
Milton Green, Basic Civil Procedure (Foundation Press, Mineola, N.Y., 2nd ed., 1979), pp. 195–200.
The Slaughter House Cases, 83 U.S. (16 Wall) 36 at 81, (1873).
Gosaert v. Cleary, 335 U.S. 464 (1948).
335 U.S. at 466. In certain cases because of the subject matter of the statute the Court will employ “elevated scrutiny” and more than a rational basis must be shown. Those cases are not relevant here.
335 U.S. at 466-67.
335 U.S. at 467.
347 U.S. 483 (1954).
a 163 U.S. 537 (1896).
334 U.S. 1(1948).
Buchanan v. Warley, 245 U.S. 60 (1917).
Shelton v. Tucker, 364 U.S. 479 (1960).
Kunz v. New York, 340 U.S. 290 (1951).
Black v. Cutter Laboratories, 351 U.S. 292 (1956).
Bell v. Maryland, 378 U.S. 226 (1964); Robinson v. Florida, 378 U.S. 153 (1964); Lombard v. Louisiana, 373 U.S. 267 (1963).
See, e.g., Jerome Frank, Law and the Modern Mind (Brentano’s, New York, 1930); Karl Llewellyn,’ some Realism About Realism,’ 44 Harvard Law Review 1222 (1931).
On relatively rare occasions, such as in the Brown case, a competent lawyer will determine that there is wisdom in proceeding with an appeal in the face of a logically deducible legal answer contrary to his client’s position. He does that because he has reason to believe that the high appellate court is beginning to doubt the validity of one or more major premise. In Brown v. Board of Education not only had the principle of “separate but equal” and its product, American apartheid, been severely criticized by increasingly large numbers of people both here and abroad, but the court itself in several prior cases had given unmistakable evidence that it was rethinking the assumptions upon which that principle was based. See Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). When lawyers read these signs they may properly advise their clients that the time may be right for having a general principle of law overruled. However, when there is no evidence that the court is dissatisfied with a general rule that is clearly decisive a lawyer would be guilty of malpractice in mounting a challenge of the principle unless he has warned his client about the risks of proceeding in such circumstances.
Karl Llewellyn, The Bramble Bush (Oceana ed., 1951), pp. 41–45.
On a slightly lower level of abstraction the case seems to hold that whenever a private contract is enforced by the government, state action is imported into the transaction and the contract must be one that would be valid if entered into by the government itself.
See, John Calamari and Joseph Perillo, The Law of Contracts (West, St. Paul 1977 2nd ed.), pp. 780–782.
See, Bell v. Maryland, 378 U.S. at 332-333 (Black, J. dissenting).
If we look once more at the restrictive covenant cases we can see how this might work. Reading the precedent case of Shelley as establishing the broad principle that government action to enforce private decisions is “state action,” the Court could have found it permissible to apply this rule to a sit-in or to the situation where a private employee is discharged because of political activity unacceptable to the employer. “Rationality” also permitted a decision in the other direction, since it was possible to read the rule in Shelley as requiring something more than neutral enforcement on the part of the state. The Court found that something more in the racially biased policies of the state governments involved in the sit-in cases, but refused to find it in the neutral application of contract law in the case of the discharge for Communist Party membership. Within this “rational” framework the Court undoubtedly used what Perelman calls “reason.” That is, common sense, intuitive judgment or some other means for determining what the Court considers sound public policy. This is what the Realists would call a “policy” decision and while they would admit that it is frequently made on the basis of “common sense” or “hunch” they would contend that in many situations it should be enhanced by relying upon social science data or other systematic efforts to gather information on policy options. In the sit-in cases, supra, the Court was willing to stick with the Shelley principle but wished to avoid its being extended much further. It undoubtedly saw segregated lunch counters in privately-owned but open-to-the public stores as an unacceptable condition in our country. On the other hand, in the Communist employment case the Court probably felt that it would be too radical an innovation in American commercial law to hold that an employee has every right against his private employer that he would have against government. Thus, “reason” helps the court choose between alternative “rationalities” or rationales. Given these understandings Perelman’s analysis is essentially sound and has historical antecedents. It is similar to what Holmes meant when he said that the life of the common law has been less logic than experience. O. W. Holmes, The Common Law, 35 (1881).
Arthur S. Miller and Ronald Howell, ‘The Myth of Neutrality in Constitutional Adjudication,’ 27 University of Chicago Law Review 661 (1960).
Anthony D’Amato, ‘The Limits of Legal Realism,’ 87 Yale Law Journal 468 (1978).
Lon Fuller, The Morality of Law (Yale Press, New Haven and London, Rev. ed. 1968), pp. 51–63.
Perelman, ‘Rational,’ pp. 217–218.
Both authors have had a long time interest in the legal systems of Pacific island societies. See Daniel Hughes and Stanley Laughlin, ‘Key Elements in the Evolving Political Culture of the Federated States of Micronesia,’ 6 Pacific Studies 71 (1982); Laughlin, ‘The Burger Court and the United States Territories,’ 36 University of Florida Law Review 755(1984); Laughlin, ‘The Application of the Constitution in United States Territories; American Samoa, A Case Study,’ 2 University of Hawaii Law Review 337 (1981); Laughlin, ‘United States Government Policy and Social Stratification in American Samoa,’ 53 Oceania 29 (1982); Sherwood Linginfelter and Daniel Hughes, ed. Political Development in Micronesia (Ohio State University, Columbus, 1974).
Daniel Hughes and Stanley Laughlin, ‘The Emerging Legal System of the Federated States of Micronesia,’ paper delivered by Laughlin to the Symposium on Emerging Legal Systems in Pacific Societies, at the Annual Meeting of the Association for Social Anthropology in Oceania, held at Salem, Massachusetts, March 6, 1985.
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Laughlin, S.K., Hughes, D.T. (1986). The Rational and the Reasonable: Dialectic or Parallel Systems?. In: Golden, J.L., Pilotta, J.J. (eds) Practical Reasoning in Human Affairs. Synthese Library, vol 183. Springer, Dordrecht. https://doi.org/10.1007/978-94-009-4674-3_10
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