The Philosophy of Reasonability in Law

The fact that a preponderance of evidence means there should be more reasonable evidence in favor of a party than otherwise literally implies that the case should be heavier, if only by 1%. Relating to statistics, if it can be shown that the confidence is 51% (equivalent to a level of significance of 49%), some preponderance of evidence can be established. The BRD yardstick implies that some understanding about “reasonability” is necessary, implying that if reason requires 99% certainty, a 1% chance of error is still within the purview of reasonability. The CCE yardstick implies that the confidence and error expectations of truth and reason are somewhere in between BRD and POE.

CCE is also an exacting standard, where the evidence produces in the mind so firm a belief or conviction that the evidence becomes immensely weighty, clear, and convincing. In this regard, it is hard to imagine how “convincing evidence” can always be below BRD, since BRD implies presenting a convincing argument, as well. CCE takes us a step beyond POE, though, because judgment is not to be reached by a simple balancing of the probabilities and errors but rather by clear and reasonable evidence.

A Stanford law professor asserts “that percentages of certainty could be assigned to three levels of proof that are used in various legal proceedings: beyond a reasonable doubt, 90 to 100%; clear and convincing evidence, 70 to 90%; and preponderance of evidence, above 50%.”² Whereas, this in itself constitutes a representative estimate of the applications of the proof, there is no certainty to these confidence limits.

In statistical significance testing, the burden of proof is on the statistician to show that observed discrepancies are too large (or small) to be reasonably attributed to chance, while in criminal proceedings the burden of proof is on the prosecution to show beyond a reasonable doubt that the accused is guilty. (In civil proceedings, the burden of proof is on the prosecution to show with either clear and convincing evidence or by a preponderance of evidence, as the applicable standard may be, that the accused is at fault.) That statistics uses means and deviations and proportionalities to arrive to its judgment of what is reasonable or not conduces to assert that reason is something normative rather than necessarily an analysis of principles and that reasonability follows from certain standards (and deviations) of typical (acceptable) behavior.

Of essence in this debate is the ultimate proposition by the brilliant mathematician Blaise Pascal (1623–1662) that men should realize that none of the ultimate philosophical questions can be answered by human reason (Hampshire 1956). More directly, a shadow is cast upon how we use reasoning to judge law cases if we believe that acceptable behavior is a function of morality that is a function of deeper philosophical functions. Whereas, there may be little practical and normative choice in the judgments of human affairs other than to use reason as we do, there is an indication here that we should probably be more realistic in our affairs and continually seek to determine what law should be rather than make new laws that are more the same style. The fundamental cue in doing so could be taken from Rene Descartes (1596–1650), whence he argues that the self must be immune from doubt. Contrary to the viewpoint of his contemporary, Pascal, Descartes emphasizes “that it is only on the evidence of our reason, and not on that of our imagination or senses, that we ought to be persuaded of the truth of anything.” What Descartes looks for are propositions that are not just difficult to doubt but nonsensical or contradictory to doubt (Hampshire 1956). If we can arrive at these types of conclusions to propositions and legal evidence, reason is well served.

Well, can we arrive to doubt-free levels with human reason? The issue at hand focuses on the term reasonable accompanied with the degree of acceptable error—terms that are substantially controversial, depending on the social norms, religious upbringing, and moral values of individuals and groups. Though, there are legal guidelines for determining the rights and wrongs of cases, there are no formulas, which make law quite different to engineering. In essence, there is no absolute certainty or unshakeable reason prescribed by law. Wikipedia (2005), the free encyclopedia, carries an interesting definition of jurisprudence:

Jurisprudence is the scientific study of law through a philosophical lens. The aim of jurisprudence is to critically analyze the purpose and application of the law. It is a historical, social, and cultural movement with the inherent contradiction that analysis of the law and understanding of its policies will unravel the truth behind legal reasoning and the exercise of legal power, even while at the same time admitting there is no such thing. It is hoped through legal scholarship that a deeper understanding of the law and the relationships of power it constructs can better society by enabling jurists to predict what the law is and what it ought to be given its unpredictable and uncertain nature.

So, how do we explain reason in the legal system when the premise of law is “unpredictable” and “uncertain?” Or, does reason derive from the untenable abstract, the more likely case, where answers such as the reason for life and reasons for the existence of this world are enigmatic and mysterious?

Though Common Law sets standards for proof and judgment, standards are fairly flexible in the human experience. Is it absolutely right, for instance, that multiple wives should not be allowed a man? Does such a law carry a divine decree, or does the permissibility of multiple wives come from a divine decree?³ Whose reason is better, and with how much conviction?

What about other reasoning differences among humans—cases such as a parent slapping a child, punishments for adultery and theft, carrying of a weapon in public, kissing in public, and teaching religion in school, etc.? The fact is that there is no absolute in the reasoning styles of different religious, national, and state groups, given that the basis for law differs from state to state and nation to nation.

The viewpoint of legal positivism is simply that the law does not seek to enforce justice or morality, though it is a just law under all circumstances, even though in reality law does impose moral restrictions. Thus, normative law simply believes that law is nothing more than a set of codified rules to ensure order in a society. Hence, laws must be obeyed whether they are inhumane or unjust (Wikipedia 2005). The enactment of law amounts to a no contest as far as reason is concerned, which is why different standards for acceptance of reason are accepted for varying degrees of life and death, fundamental rights, and civil matters.

Take for instance, St. Augustine’s (354–430 A.D.) reasoning in the 4th and 5th centuries “I think, therefore God is,” correlate it with Rene Descartes’ (1596–1650) in the 17th century, cogito ergo sum, “I think, therefore I am,” and compare the two with Jean Paul Sartre’s (1905–1978)⁴ in the 20th century “I exist, therefore I think.” One can see a tangible shift in perception and inductive reasoning over the centuries of these great philosophers who significantly influenced social thought and concepts of social freedom. The finding is that it is difficult to assert reason with a very high degree of confidence.

Another compounding matter in this analysis is that freedom and law significantly oppose each other. While freedom seeks to be fully open, uninhibited, and unconstrained, law seeks to close, inhibit, and constrain. The question can thus be justifiably asked and debated, “Is it reasonable to curtail any freedom at all, if a freedom aids in spiritual growth?”

The bottom line is that there are differences in reasoning between people of different personalities, different hemisphericities, different age groups, different genders, different religions, and all such parameters (many of which actually appear under the Equal Employment Opportunity Commission’s parameters to identify and prevent workplace discrimination).

So, what is reason—a question we aren’t done grappling with? Before getting into philosophical arguments, I always like to check out the dictionary meaning, learning a thing or two in the process. The American Heritage Dictionary (1996) gives the following formative definitions:

reason n. 1. The basis or motive of an action, a decision, or a conviction.2. An underlying fact or cause that provides logical sense for a premise or an occurrence.

Thus, inasmuch as the motive of different people for an action varies, the underlying reasons are different. Hence, from effect to cause, a posteriori, it can be deduced that the understandings of the reasons of an action vary from driving motive to driving motive. Influenced by depth of perception and breadth of experience, one individual may be unable to understand the motives of another. Thus, where jurors and judges sit on judgment to examine the underlying causes and reasons of things, they are affected by their sectional minds in a normalized social framework. In a melting pot, such as the United States of America, the chance of faulty reasoning on this account can be imagined to be substantial.

Kant (1781) has a perspective on this issue of being able to judge judiciously, coming to the conclusion that more than intelligence or reason, some natural talent is necessary to be a good judge

A physician, a judge, or a ruler may have at command many excellent pathological, legal, or political rules, even to the degree that he may become a profound teacher of them, and yet, none the less, may easily stumble in their application. For, although admirable in understanding, he may be wanting in natural power of judgment. He may comprehend the universal in abstracto, and yet not be able to distinguish whether a case in concreto comes under it. Or the error may be due to his not having received, through examples and actual practice, adequate training for this particular act of judgment. Such sharpening of the judgment is indeed the one great benefit of examples. Correctness and precision of intellectual insight, on the other hand, they more usually somewhat impair. For only very seldom do they adequately fulfil the requirements of the rule (as casus in terminis). Besides, they often weaken that effort which is required of the understanding to comprehend properly the rules in their universality, in independence of the particular circumstances of experience, and so accustom us to use rules rather as formulas than as principles. Examples are thus the go-cart of judgment; and those who are lacking in the natural talent can never dispense with them. [emphasis added].

The same as for a physician or judge, as Kant mentions above, is true for our university administrators, company CEOs and presidents, and cabinet secretaries—for where they may have specialty skills in a particular field of study, these skills in no way qualify them to be good administrators or make suitable judgments on personnel affairs.

Standards in law are perforce based on acceptable yardsticks of social behavior. Of essence here is the perception of the conduct of a reasonable person. We can expect such standards to be rooted in common sense that influence normal social conduct. A good example of a standard is the duty of care owed by a reasonable person. The reasoning faculty attributed to this reasonable person can be considered as prudent, fair, and careful, and as one who has given due consideration to issues, bargains and alternatives (Riedel 1991).

A reasonable application of legal standards for use in case reasoning covers notions such as good faith and conscientious conduct of the so-called prudent man. This is the type of person who is wise in the theory and the practical—a person fully knowledgeable in social norms, experienced, a good citizen, and having some intuition to grasp the missing elements of evidence (Pound 1933).

Thus, we have “the cautious worker,” “the reasonable salesman,” “common usages of trade,” “fairness of competition,” or the “conscientious civil servant” as normative requirements for reasonability in law. Other examples of reasonability are manifest through use of “proportionality,” “adequacy,” “fitness,” or “the least harmful course of action.” (Pound 1933).

All these standards incorporate principles of practical reason, pure reason, morality, faith, God, and common sense. Interestingly, and somewhat bewilderingly, these abstractions are applied concretely in individual cases in an attempt to be fair and reasonable.

Given the philosophical difficulties in defining reasonability, it is not surprising that some circular reasoning ensues in the practice of standards of proof, where reasonability is ultimately defined as the exercise by a reasonable person.

In closing out this inconclusive debate, let us revisit the great Immanuel Kant, who wrote the famous treatises The Critique of Pure Reason and The Critique of Practical Reason that are among the most important books in the history of philosophy.

Inasmuch as the reality of the concept of freedom is proved by an apodeictic [philosophical] law of practical reason, it is the keystone of the whole system of pure reason, even the speculative, and all other concepts (those of God and immortality) which, as being mere ideas, remain in it unsupported, now attach themselves to this concept, and by it obtain consistence and objective reality. [Kant 1788]

In this, Kant is basically saying, as he says repeatedly through his book, that experience [through practical reason] is the forebearer of pure reason. Unless we can root reason in practicality, reason is meaningless. Then, he adds in his Critique of Practical Reason:

… But this, at once, assumes a positive value, when we observe that the principles with which speculative reason endeavors to transcend its limits lead inevitably, not to the extension, but to the contraction of the use of reason, inasmuch as they threaten to extend the limits of sensibility, which is their proper sphere, over the entire realm of thought and, thus, to supplant the pure (practical) use of reason. [emphasis added] [Kant 1788]

Thus, Kant reasons that reason—both practical and pure—must give way to sensibility, since reason lacks the capability to explain most human affairs, somewhat echoing Pascal’s findings that reason has limited use. Now, here is a new yardstick for standards of proof—not reason but sensibility. In closing, we come to the milestone [not necessarily a “conclusion”] that sensibility and natural talent must be nurtured in affairs of standards of proof, in addition to the [unfulfilling] uses of logic and reason. Here is a task for the next century for our champions!

The articles presented in this issue, as in every issue of Legal Affairs, are carefully chosen from the numerous articles received. We encourage experts in engineering law, alternate dispute resolution, and construction claims to submit articles to us. The consciousness of legal affairs in engineering matters needs to be enhanced for the betterment of our profession, to which end the Legal Affairs Section has a singular mission. We hope you enjoy reading these articles, much as we enjoyed putting them together for you, all the while as we prepare more interesting articles for future issues.

Beh, H. (2005). Personnel Communication with Professor Hazel Beh, William S. Richardson School of Law, University of Hawaii at Manoa.

Burden of Proof—Clear and Convincing Evidence. (1988). ⟨http://www.judiciary.state.nj.us/civil/charges/119.htm⟩.

Standard of proof, the ‘Lectric law library’s lexicon. ⟨http://www.lectlaw.com/def2/s217.htm⟩.