Via Bill Patry’s Copyright Blog, I’ve caught up with Judge Posner’s recent book review on analogy and judicial reasoning (Reasoning By Analogy, 91 Cornell L. Rev. 761 (2006), reviewing Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument (Cambridge Univ. Press 2005). Bill posts a comment, in support of Judge Posner, because the argument invokes some famous copyright cases. I’m less interested in the copyright implications for now. I’m curious about Judge Posner’s juxtaposition of two propositions which I think are difficult to reconcile.
First, criticizing Lloyd Weinreb for focusing on the flash of the law, not the substance, as it were, Judge Posner writes:
Reasoning by analogy as a mode of judicial expression is a surface phenomenon. It belongs not to legal thought, but to legal rhetoric. Weinreb has confused how judges think with how they talk.
He continues, later:
Weinreb’s basic misunderstanding may be that he thinks law a thing, and therefore something that has a perimeter, whereas in fact it is an activity. From the standpoint of the judge, which is the standpoint from which Weinreb discusses reasoning by analogy, it is the activity of deciding cases. The duty to decide is primary. The materials usable for decision include everything that the society recognizes as pertinent to a legal decision, and that certainly includes economic considerations in deciding on a regime of property rights for natural resources.
Here’s what puzzles me: If law is doing (and on that score, I certainly agree), then in what sense is the talking not part of the doing? Judge Posner is right, on pragmatic grounds, to refuse to define “law” as a unique domain, and I understand that “deciding” and “justifying” are convenient categories for analytic purposes. But they are conveniences, not absolutes. If Judge Posner is so rightly reluctant to be categorical about subject matter, then why persist with such a categorical approach to method? (And why, for that matter, implicitly divide the world so categorically into subject matter and method in the first place?) The talking (what Judge Posner refers to as the “mere” rhetoric) certainly isn’t all of the doing, but language — the justifying — is an inescapable part of what the law “is.” Neither, for that matter, can the talking (judicial talking, since that’s what’s at issue in these pieces) be so neatly distinguished from the thinking. The issue isn’t merely philosophical; to a large degree, it’s empirical: To what extent does anyone fully reason through the solution to a problem in his/her mind, and only *then* inscribe the solution somehow? Or, alternatively, are the problem-solving and the inscribing interwined?
Justifying and deciding, or talking and doing, in other words, can’t be so neatly separated from one another. To recognize the role of analogy in the former means, in my view, inevitably accepting the role of analogy in the latter. And that’s entirely consistent, I think, with Judge Posner’s view of “the law” as *not* an autonomous domain. For a lengthy elaboration of the point, see Dan Hunter, Reason is Too Large: Analogy and Precedent in Law, 50 Emory L.J. 1197 (2001).