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Judicial reasoning: the production of legal knowledge

2019
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Judicial reasoning: the production of legal knowledge Author: Mustafa Tash BA, MSc, GDL
2 Table of Contents The aims of this paper……………………………………………………………………………………………………….3 Why is such categorisation of Rationes Decidendi (legal ratios) beneficial? ………………………3 How to read this paper……………………………………………………………………………………………………..3 Methodology……………………………………………………………………………………………………………………4 Examining the nature of judicial reasoning: what type of ‘knowledge’ does judicial reasoning belong to?..........................................................................................................5 What does judicial reasoning consist of?............................................................................ 7 What is meant by the phrases ‘logical’ and ‘non-logical’?....................................................7 Two examples of logical judicial ratios.……………………………………………….…………………………….9 Two examples of non-logical judicial ratios………………………………………………………………………12 What are the features that determine whether a legal ratio is a logical one or not?.........13 By contrasting logical and non-logical ratios, what implications can one derive from logical and non-logical ratios?.....................................................................................................16 Which one is better: logical or non-logical ratios?..............................................................17 References and Bibliography…………………………………………………………………………………………..19
Judicial reasoning: the production of legal knowledge Author: Mustafa Tash BA, MSc, GDL Table of Contents The aims of this paper……………………………………………………………………………………………………….3 Why is such categorisation of Rationes Decidendi (legal ratios) beneficial? ………………………3 How to read this paper……………………………………………………………………………………………………..3 Methodology……………………………………………………………………………………………………………………4 Examining the nature of judicial reasoning: what type of ‘knowledge’ does judicial reasoning belong to?..........................................................................................................5 What does judicial reasoning consist of?............................................................................7 What is meant by the phrases ‘logical’ and ‘non-logical’?....................................................7 Two examples of logical judicial ratios.……………………………………………….…………………………….9 Two examples of non-logical judicial ratios………………………………………………………………………12 What are the features that determine whether a legal ratio is a logical one or not?.........13 By contrasting logical and non-logical ratios, what implications can one derive from logical and non-logical ratios?.....................................................................................................16 Which one is better: logical or non-logical ratios?..............................................................17 References and Bibliography…………………………………………………………………………………………..19 2 The aims of this paper are as follows: I. Placing judicial ratios into two different categories: a. Logical judicial ratios, and b. Non-logical judicial ratios. II. Defining what is meant by ‘logical’ and ‘non-logical’ ratios. III. Placing some judicial ratios, as examples, into these two categories: the logical judicial ratio and the non-logical judicial ratio. IV. Demonstrating how conceiving judicial ratios in terms of the categories logical and non-logical can assist interested parties in understanding the nature of the law which is produced as a result of establishing such judicial ratios. Why is such categorisation of Rationes Decidendi (legal ratios) beneficial? The author argues that categorising different judicial ratios into different categories, especially logical and non-logical ratios, would assist academics, lawyers, Judges and the public in general in understanding the scope of validity of judicial ratios. If the scope of validity of a judicial ratio is conceived, then it is implied that what is considered to be outside of this scope of validity, i.e. the limitations of such a ratio, can also be conceived. This kind of evaluation of what is inside and outside of the scope of a given judicial ratio would enable the interested parties to analyse and argue when such a ratio should be valid, when such a ratio should not be valid, and when such a ratio should be overturned. How to read this paper To make sense of this paper the footnotes in this paper are as important as the body of the paper; footnotes are made so as to draw attention to some words and to define some phrases in the body of this paper. 3 Methodology 1. It has been observed by the author of this paper that some judicial ratios have the distinctive feature of being suitable to be categorised as logical1; thus, the category of logical is established. The negation of ‘logical, i.e. ‘non-logical’, is also established for the purpose of engulfing ratios which do not fit the category of logical ratios. 2. Distinguishing different judicial ratios for the purpose of placing them in the two categories, logical and non-logical, will require applying some sort of analysis on these ratios; and 3. This sort of analysis needs to be capable of decomposing all sorts of judicial ratios into the correct form of simpler elements; and 4. In order to determine whether a ratio is logical or non-logical, those simpler elements need to be examined and compared against the benchmark, the features, which will determine whether a judicial ratio is a logical or a non-logical one. Methodology points ‘2’ and ‘3’ above mention the phrase ‘sort of analysis’. In order to determine the ‘sort of analysis’ required to analyse judicial ratios, one must examine the nature of judicial reasoning in general; the reason as to why judicial reasoning is of importance here is that judicial ratios are formed within the judicial reasoning process. Hence, analysing judicial reasoning would also imply analysing judicial ratios. To begin with, in order to determine the correct ‘sort of analysis’ required for decomposing different sorts of judicial ratios, this paper proposes the following the question: what are the factors that cast validity to judicial reasoning? Addressing this question, the author argues, would enable us to establish the element(s) which one needs to examine in order to determine the correct ‘sort of analysis’. For example, if judicial reasoning simply an argument from authority; thus, the validity of judicial reasoning lies in the authority which stands behind it, then one needs to focus and examine the nature of such authority. However, if judicial reasoning bear more than authority, namely if judicial reasoning bear validity from the rationality that it expresses, then one needs to focus and examine the nature of 1 What is meant by the word ‘logical’ is explained later in this paper. 4 rationality. This paper takes the view that judicial reasoning holds validity from the rationality that it expresses in the reasoning. Therefore, the rationality which is exhibited in the Judges’ reasoning is focused on. In order to find the correct method with which to analyse this rationality in judicial reasoning, one needs to find the type of ‘knowledge’ which is exhibited in judicial reasoning. After determining the type of ‘knowledge’ to which judicial reasoning belongs, the suitable ‘sort of analysis’ can be established based on the type of knowledge to which judicial reasoning belongs. Finally, the suitable ‘sort of analysis’ is applied to ratios for the purpose of placing different judicial ratios in the two categories: logical and non-logical ratios. Examining the nature of judicial reasoning: what type of ‘knowledge’ does judicial reasoning belong to? What is meant by the word ‘knowledge’ in the title of this paper and in the body of this paper is information2. This paper argues that there are two sources of information (or knowledge): knowledge which is produced by thoughts and knowledge which is produced by observance. The followings contain the details:  The first type of knowledge is information which is produced mainly3 by thoughts. For example, by one sitting down and thinking about certain things, and thinking about The reason as to why the word ‘information’ is used in combination with the word ‘knowledge’ is that using one of them would not achieve the meaning which is sought by the author of this paper. Combining these two words -‘knowledge’ and ‘information’ - aims to ensure that the sense of the word ‘information’ is understood by the reader as a piece of ‘knowledge’, and that the sense of the word ‘knowledge’ is perceived by the reader to be ‘information’. The author of this paper attempts to eliminate a part of the inherent vagueness in language. 2 Compare the word ‘mainly’ with other words such as ‘exclusively’ and ‘utterly’, the word ‘mainly’ refers to majority rather than exclusivity. The author opted to use the word ‘mainly’ because for both sources of knowledge - thoughts and observance - elements of ‘thoughts’ and elements of ‘observance’ are used; however, the use of the element ‘thoughts’ is greater than the use of the element ‘observance’ in the first type of knowledge production (knowledge produced by thoughts), whereas the use of the element ‘observance’ is greater than the use of the element ‘thoughts’ in the second type of knowledge production. 3 5 the meaning and the implications of such things. The conclusions and propositions that result from this sort of thinking is a type of information which is produced by thoughts.  The second type of knowledge is that information which is produced mainly4 by the observance of controlled procedures5. For example, in a chemistry laboratory, in order to figure out what will happen when mixing two different substances together, through thoughts alone, one cannot know the outcome - the observance of the experiment is key to producing this knowledge. Judicial reasoning is not the second type of knowledge, as no observance of a controlled procedure is involved in judicial reasoning. Judicial reasoning is a type of knowledge which is produced by the process of thoughts, the first source of knowledge production above. Not only judicial reasoning belongs to the first type of information production - other fields include philosophy, ethics, and some fields in mathematics (e.g. mathematical proof) are also produced by thoughts. This type of knowledge production is governed by rules that govern the production of correct forms of arguments, such as the consistency of the premises with the conclusions. What is meant by the phrase ‘consistency of the premises with the conclusions’ is that: the absence of a contradictory element (or elements), in the premises and the conclusions that follow those premises. 4 See footnote ‘3’. The phrase ‘controlled procedures’ is not meant to indicate legal procedures; rather, the phrase is meant to indicate procedures such as laboratory experiments (e.g. in a physics or chemistry laboratory). 5 6 What does judicial reasoning consist of? Judicial reasoning is a process. This process consists of: a. Analysing the details of the case which is brought before the Court. b. Looking at guidance, if any, from relevant statutes or from precedents (previous related judgments). c. Establishing the premises upon which the Judge(s) will be relying. Those premises can be from the actual details of the case which is brought before the Court as per ‘a’ above or6 from the relevant guidance as per ‘b’ above. d. Drawing relations among those different premises, which are established as explained in ‘c’ above. e. Reaching general conclusions that can be used in future analogous cases. f. Applying ‘e’ from above in order to judge the specific case in hand (the case law which invoked the need to carry out this judicial reasoning process). Element ‘a’ above is concerned with knowing what the legal case which is being handled in the Court is about. Element ‘b’ concerns Judges having to look for mental guidance in order to direct their mental reasoning to reason in a certain way. Elements ‘c’, ‘d’ and ‘e’ above form the Rationes Decidendi 7 (ratio) of the legal judgment, and ‘f’ is the decision made with regard to the specific legal case in question. What is meant by the phrases ‘logical’ and ‘non-logical’? The phrase ‘non-logical’ does not mean ‘illogical’, ‘irrational’ or ‘contradictory’; any ratio which cannot be classified as ‘logical’ (i.e. does not fit the definition of logical) will be automatically classified as ‘non-logical’. For a ratio to be considered logical, in the sense of this paper, this ratio has to contain the following: The conjunction ‘or’ represents the inclusive form of ‘or’ not the exclusive ‘or’. Rationes Decidendi (Latin): is the judicial ratio i.e. the rules and principles which set the foundation for deciding legal case. 6 7 7 i) Premises (which is element ‘c’ in the judicial reasoning process); and ii) The relationship between/among these premises yields a conclusion (which is element ‘d’ in the judicial reasoning process); and iii) This conclusion is produced by elements of necessity rather than elements of probability (which is element ‘f’ in the judicial reasoning process). Those three points above (i, ii, iii) are the elements of which a ratio consists. If a conclusion does not follow necessarily from 1) the premises and 2) the relationship among the premises, then it is ‘non-logical’. The following is an example8 of what is considered to be a perfect logical ratio (i.e. the conclusion which is produced by the premises and the relationship between the premises is produced by the element of necessity):  Let ‘M’ and ‘P’ be premises that represent numbers, and  Let us assume that upon examination of the premises, the relations between the premises ‘M’ and ‘P’ are discovered by us to be:    M ≠ P (i.e. ‘M’ and ‘P’ must be different numbers), and M + P = M (i.e. ‘M’ and ‘P’ yields ‘M’) Then the conclusion which is produced by the elements of necessity is that: ‘P’ must be zero. The conclusion that ‘P = Zero’ was reached by the elements of necessity. One needs to appreciate that the number ‘zero’ was not mentioned in the premises or the relations between the two premises ‘M’ and ‘P’ yet it popped up as an answer. This example of logical ratio can also be conceived as an argument. This argument can also be produced in the following word formats: 8 Please note that the following example is brought from the field of mathematics as to help the reader to grasp what is meant by the sentence ‘a conclusion that follow necessarily from premises and the relationship among premises’ in a strict sense; and the field of mathematics contains clearer examples of logical ratios than other fields. 8 Where two different entities exist and adding those two entities always reproduces one of the two elements, then the element which was not reproduced must lack a value (i.e. zero)9. In addition, it worth drawing the reader’s attention to the following point: one must assume that the premises and the relationship between/among the premises as shown in the example above to be correct, and if the premises and the relations between them are correct, then ‘P = Zero’. Two examples of logical judicial ratio The first example: It has been stated in the case of Regina v Broadcasting Complaints Commissioner, Ex Parte Owen: Ca 1985, by May LJ that: ‘Where the reasons given by a statutory body for taking or not taking a particular course of action are not mixed and can clearly be disentangled, but where the court is quite satisfied that even though one reason may be bad in law, nevertheless the statutory body would have reached precisely the same decision on the other valid reasons, then this court will not 10 interfere by way of judicial review.’ The above citation which is a part of May LJ’s judicial reasoning is considered to be the ratio of the case. This ratio is argued in this paper to be produced by elements of necessity; However, under the given premises and the relations between the premises (i.e. M ≠ P, M + P = M , and M and P are numbers) the value of ‘M’ can represent any value but not ‘zero’; an exact value of ‘M’ cannot be determined as there is no sufficient information in the premises and relations between the premises; thus the value of ‘M’ is undetermined. 9 10 There is no need for the Court to interfere by way of judicial review, because even if the Court interferes with the decision of the statutory body, then the decision of the statutory body will not be negated, given that the conditions stated in May LJ’s ratio are met. 9 thus, this ratio can be classified as logical. The reason as to why this ratio is argued to be logical is that the ratio represents a logical rule which can be stated as follows:  Let ‘Y’ be the decision which is made by the statutory body.  Let ‘a’, ‘b’ and ‘c’ be the reasons (premises) that yield to decision ‘Y’, thus:  𝑎+𝑏+𝑐 =𝑌 Let the premises ‘a’, ’b’ and ‘c’ have the following relations among each other: ‘are not mixed and can clearly be disentangled’ as per May LJ’s ratio: 𝑎≠𝑏≠𝑐  Let ‘c’ be the reason which is ‘bad in law’ as per May LJ’s suggestion in the ratio.  Let ‘a’ and ‘b’ be the valid reasons in law.  Let us also assume that the ‘statutory body would have reached precisely the same decision [decision ‘Y’] on the other valid reasons [reasons ‘a’ and ‘b’]: 𝑎+𝑏+𝑐 =𝑌 and also 𝑎+𝑏 =𝑌 i.e. ‘a’, ‘b’ and ‘c’ as premises yield decision ‘Y’ and also ‘a’ and ‘b’ yield decision ‘Y’. In other words, with or without ‘c’, the bad reason in law, decision ‘Y’ is produced.  Then ‘c’ must be valueless (zero) with respect to decision ‘Y’, that decision ‘Y’ would have been reached regardless of ‘c’ which represents the bad reason in law. In other words, if the valid reasons in law ‘a’ and ‘b’ can yield to decision ‘Y’ then reasons ‘a’ and ‘b’ have rendered reason ‘c’ valueless; thus there is no point in conducting a judicial review if ‘c’, which represents to be the bad reason in law, has no value. This is May LJ’s logical ratio in Regina v Broadcasting Complaints Commissioner. 10 The second example: Another example of a logical judicial ratio can be found in Pinnel’s case. The ratio is as follows: ‘a payment of a lesser on the day in satisfaction of a greater sum cannot be any satisfaction for the whole’ The relevant logical rule which represents the ratio above is as follows: 1) Let ‘S’ be a set11; and 2) Let ‘x’ be a subset12. 3) If ‘x’ is strictly a subset of ‘S’ (symbolically expressed as 𝑥 ⊊ 𝑆); 4) Then as a matter of necessity ‘S’ ≠ ‘x’. To put the above logical rule in the context of the Pinnel case’s ratio, the following assumptions can be stated: let us assume that the total sum due to be paid is £1000 and let us also assume that the proposed part-payment is £300. Let set ‘S’, from the logical rule above, represent the total sum due, which is £1000, and also let the subset ‘x’, from the logical rule above, represent the proposed part-payment of £300: i.e. S= £1000 and x=£300. The meaning that one can abstract from £300 being a subset of £1000 is that: £300 is a part of £1000 (symbolically: £300 ⊊ £1000) then £300 ≠ £1000 (symbolically: ‘S’ ≠ ‘x’). The judicial ratio can be edited using the previous assumptions in the following way: ‘A payment of a lesser [here is £300] on the day in satisfaction of a greater sum [here is £1000] cannot be any satisfaction [≠] for the whole [here is £1000]’ In other words, £300 ≠ £1000 (symbolically: ‘S’ ≠ ‘x’). A ‘set’ is an abstract container that can hold different objects within it. For example, one can say that there exists a set called ‘colours’, and within this set ‘colours’ there are objects such as ‘blue’, ‘red’ and ‘yellow’. However, if one needs to have objects within those objects, e.g. to have the objects ‘dark yellow’ and ‘light yellow’ under ‘yellow’ then ‘yellow’ will be made a subset to the set ‘colours’ and the objects ‘dark yellow’ and ‘light yellow’ will be the objects in the subset ‘yellow’. In other words, ‘yellow’ was an object in the set ‘colours’ until it was decided that the objects ‘dark yellow’ and ‘light yellow’ are inserted inside the ‘yellow’. One can also extend this argument and state that since sets have objects and those objects can be made to be subsets to the sets then everything can be made to be to a set or a subset. 11 12 See footnote ‘11’. 11 Two examples of non-logical judicial ratios: The first example: In the case of Donoghue v Stevenson [1932] the House of Lords decided, by a slight majority (3:2), in favour of expanding the law to award damages in situations wherein no contract of sale between the seller and the consumer existed. It has been stated by Lord Atkin, who advocated the expansion of the law, that: ‘I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilised society and the ordinary claims which it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.’ Lord Atkin’s ratio was not reached by elements of necessity; rather, his ratio can be considered to be an opinion. There are no premises expressed in the ratio that could have led Lord Atkin to conclude that: a legal remedy must be granted where a social wrong is found. Lord Buckmaster, who opposed the expansion of the law in the same case, stated that: ‘The law applicable is the common law, and, though its principles are capable of application to meet new conditions not contemplated when the law was laid down, these principles cannot be changed nor can additions be made to them because any particular meritorious case seems outside their ambit.’ Lord Buckmaster’s conclusion was reached in a similar way to that of Lord Atkin’s conclusion, similar in the following sense: Lord Buckmaster’s conclusion and Lord Atkin’s ratio were not reached by elements of necessity. Both statements from both Judges are correct within themselves, i.e. consistent within their own body as a piece of information, but both statements contradict each other when compared with each other. In addition, both statements are also similar in that both statements express a sort of opinion; there is no justification mentioned (i.e. no premises mentioned) as to why Lord Buckmaster thinks that: 12 ‘these principles [common law principles] cannot be changed nor can additions be made to them’. Similarly, there are no justifications (i.e. no premises) provided as to why Lord Atkin thinks that: ‘I do not think … principles are so remote from the ordinary needs of civilised society’ and as why Lord Atkin had already decided that the incident in question constituted ‘a social wrong’. The second example: In the case of R v R [1991] which concerns marital rape, the following conception was examined by the Court: ‘By marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances.’ However, the judgment concluded that: ‘In modern times any reasonable person must regard that conception as quite unacceptable.’ Similar to the first example of non-logical ratios, there is no justification (no premises) provided as to why ‘In modern times any reasonable person must regard that conception as quite unacceptable’. One can only reason that there has been a change in views in the society and the Court is willing to implement these views while deciding upon cases. What are the features that determine whether a legal ratio is a logical one or not? Two features are discussed here: 1) the feature of ‘necessity’ and 2) the feature of ‘analysis’. Before embarking on discussing these two features, it is worth providing, as a reminder, that legal ratios are a part of judicial reasoning and, as mentioned earlier, judicial reasoning is a process. This process involves: 13 a. Analysing the details of the case which is brought before the Court. b. Looking at guidance, if any, from relevant statutes or from precedents (previous related judgments). c. Establishing the premises upon which the Judge(s) will be relying. Those premises can be from the actual details of the case which is brought before the Court as per ‘a’ above or from the relevant guidance as per ‘b’ above. d. Drawing relations among those different premises, which are established as explained in ‘c’ above. e. Reaching general conclusions that can be used in future analogous cases. f. Applying ‘e’ from above in order to judge the specific case in hand (the case law which invoked the need to carry out this judicial reasoning process). Elements ‘c’, ‘d’ and ‘e’ which are highlighted above form the ratio of the legal judgment. The feature of ‘necessity’: A ratio is a logical one if and only if: 1) the premises (which concerns the highlighted element ‘c’ in the judicial reasoning process above) and 2) the relationship between/among the premises (which concerns element ‘d’ above in the judicial reasoning process) yield the necessary general conclusion ‘y’ (which is element ‘e’ in the judicial reasoning process):  If ‘A’ and ‘B’ are premises and ‘y’ is the general conclusion, and if the relationship between ‘A’ and ‘B’ yields the necessary conclusion ‘y’, then: the premises with their relations and the conclusion are considered a logical ratio. A ratio is a non-logical one if: 1) the premises and 2) the relationship between/among the premises yield conclusion ‘x’ and ‘x’ is not a necessary conclusion:  If ‘C’ and ‘D’ are premises and ‘x’ is the general conclusion, and if the relationship between ‘C’ and ‘D’ yields conclusion ‘x’ and ‘x’ is not a necessary 14 conclusion of ‘C’ and ‘D’ then: the premises with their relations and the conclusion are considered a non-logical ratio. A ratio is also considered non-logical if no premises (i.e. no justifications) are expressed by the Judge(s) while constructing the ratio. The feature of ‘analysis’: The second feature that can be used for distinguishing logical and non-logical ratios is the concept of ‘analysis’. What is meant by ‘analysis’ in this paper is: the decomposition of a complex (e.g. an issue) into simpler entities (forms); the aim of this decomposition is that the complex will be better understood by analysing it (composing it) in simpler forms. It is also hoped that those simpler entities, in their totality, would form the complex again; hence, no information is lost when a given complex is analysed (decomposed). For example, if ‘G’ is a complex and by analysing ‘G’ the following simpler forms are established: ‘t’, ‘y’ and ‘u’, then one can say that: G = [t,y,u]. In other words: t, y and u, in their totality, equals ‘G’; therefore, stating ‘G’ and stating ‘t, y and u’ are the same. The concept of ‘analysis’ can be applied by a reasoner to establish both logical and non-logical ratios; however, logical ratios must be formed by applying ‘analysis’, whereas non-logical ratios can be established by applying ‘analysis’, but not necessarily. In other words, if a ratio is considered logical, then it must be analytical; on the other hand, if a ratio is considered non-logical, then whether this ratio is analytical or not cannot be known. Let us notate the phrase ‘analytical ratio’ to any ratio that applied the concept of ‘analysis’, then ‘analytical ratios’ can be logical and non-logical13. If the non-logical ratio ‘x’ is considered analytical, then the ratio ‘x’ is not a necessary conclusion of the premises and the relationship between/among the premises. This is because if the non-logical ratio ‘x’ was a necessary conclusion of the premises and the relationship among the premises, then ‘x’ would have been a logical ratio rather than a non-logical ratio. 13 It has been mentioned the in the previous paragraph that both logical and non-logical ratios can be originated by applying ‘analysis’. 15 There also exists the possibility that two different Judges who are occupied by the same legal case can reach the same conclusion ‘z’ but on different grounds, i.e. different premises. It is possible that one of the Judge’s ratio is considered to be logical, while the other Judge’s ratio is non-logical despite both having reached the same conclusion ‘z’; this possibility exists because while the first Judge’s grounds do necessarily yield ‘z’, the other Judge’s grounds do not necessarily yield ‘z’; rather, ‘z’ is a possibility. Since the general conclusion is the same, namely ‘z’, but the means by which to reach ‘z’ are different, then what makes a judgment logical or not is not the general conclusion but rather the means by which to reach the conclusions. By contrasting logical and non-logical ratios, what implications can one derive from logical and non-logical ratios in terms of the nature of the law? With regard to non-logical ratios, one can predict that such ratios are influenced (i.e. affected) by cultural and value changes (as seen in the case of R V R [1991]); thus, this paper argues that existing non-logical ratios which are considered the law at present carry a higher likelihood of being reversed than that of logical ratios. If one wonders what factors determine or should determine Judges’ attitudes towards reversing the existing common law or establishing new common law rules, then the answer can be that: Judges may look at the examined common law and consider whether this existing common law can be classified as logical or non-logical; non-logical ratios should be more susceptible to change than logical ratios, this is because non-logical ratios rely more heavily on the current state of culture and values of the country than logical ratios. 16 Which one is better: logical or non-logical ratios? To answer the question of ‘which one is better?’ this paper relies on the following principle: objectivity is better than subjectivity. The reason for holding this principle is that: objectivity can be communicated to the audience more clearly than subjectivity; hence clarity of communication is the factor in deciding which one is better: logical or non-logical ratios. Based on the principle that objectivity is better than subjectivity, it follows that the more objective a ratio is, the better. Objectivity and subjectivity are not exclusive endpoints; rather, there exists a grey area between them. There is neither 100% objective nor 100% subjective information. All types of information carry elements of subjectiveness and objectiveness; the question is: which element is greater in a given piece of information? The more objective an information is, the less subjective it is, and vice versa: the more subjective information is, the less objective it is. And judicial ratios are a sort of information. Objectiveness and subjectiveness can be imagined as a scale: More objective C More subjective A B Objective Subjective In the scale above there are three circles which contain the letters ‘A’, ‘B’ and ‘C’. Let us assume that each letter represents a different piece of information. In addition, the scale also has two ends: the end on the right-hand side represents pure subjective information, whereas the end on the left-hand side represents pure objective information; any information that lies in between the two ends will have both elements of subjectiveness and objectiveness but in different proportion. For example, according to the scale, letter ‘A’ represents a piece of information which is considered to be more objective than subjective, whereas letter ‘B’ represents a piece of information which is considered to be more subjective than objective. Letter ‘C’ represents a piece of information which is more objective than information ‘A’; thus, among information ‘A’, ‘B’ and ‘C’, ‘C’ is the most objective piece of information. 17 Judicial logical ratios are more objective (i.e. less subjective) than non-logical ratios. This is because logical judicial ratios represent how the law should be from a necessity point of view, whereas non-logical ratios represent a form of argument from authority. The difference between logical and non-logical can be summed in the following points:  Non-logical judicial ratios: in the process of reasoning, the ends (the conclusion) are decided first by the Judge and then all supporting propositions are presented in order to support the ends (the conclusion).  Logical judicial ratios: in the process of reasoning, the evidence is examined by the Judge and then this examination yields the ends (the conclusion). 18 References  Donoghue v Stevenson [1932] UKHL 100.  Pinnel's Case [1602] 5 Co. Rep. 117a.  R. v. R. [1991] 3 WLR 767 House of Lords.  Regina v. Broadcasting Complaints Commissioner, Ex Parte Owen (1985) 1 Q.B. 1153. Bibliography  Cameron, P. (1999). Sets, Logic and Categories. Springer Publisher.  Holyoak, K and Morrison, R. (2005). The Cambridge Handbook of Thinking and Reasoning. Cambridge: Cambridge University Press.  McCormick, N. (1994). Legal Reasoning and Legal Theory. Oxford: Oxford Scholarship.  Russell, B. (1919). The Introduction to Mathematical Philosophy. London: George Allen & Unwin Ltd.  Russell, B. (1972). The Philosophy of Logical Atomism. Oxon: Routledge.  Wittgenstein, L. (1922). The Tractatus Logico-Philosophicus. London: KegaL Paul. If you have any comments or any questions please do not hesitate to contact me. The end of the paper 19
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