In countries like the United States and England, where thought about law has focused primarily on adjudication, legal reasoning is often identified with the intellectual processes by which judges reach conclusions in deciding cases. In countries like France and Germany, on the other hand, where thought about law has focused primarily on codification—that is, the creation of a complex and harmonious body of legal rules and concepts —legal reasoning is often identified with the intellectual processes by which the rationality and consistency of legal doctrines are maintained and justified. Since, as we shall see, both these types of reasoning are closely related to each other, we would define legal reasoning broadly enough to include them both; and indeed, we propose to broaden the definition still further to include also the types of reasoning used in other kinds of legal activity, such as making laws, administering laws, the trial (and not merely the decision) of cases in court, the drafting of legal documents, and the negotiation of legal transactions.
When legal reasoning is conceived of in these broader terms, it is seen to involve not only, and not primarily, the application of rules of formal logic but also other methods of exposition. To reason, according to dictionary definitions, may mean to give grounds (reasons) for one’s statements, to argue persuasively, or to engage in discourse. Law, insofar as it has a distinctive subject matter and is founded on distinctive principles and purposes, has not only its own kinds of logic but also its own kinds of rhetoric and its own kinds of discourse, which are, of course, similar to the logic, rhetoric, and discourse of other social institutions and other scholarly disciplines but which nevertheless have certain distinctive characteristics.
In seeking to identify these distinctive characteristics, we must keep in mind that legal reasoning is not identical in all societies and that, in addition, the degree of its distinctiveness is not identical in all societies. In a theocracy, for example, legal reasoning may be closely related to sacerdotal reasoning; at one time the high priests of Israel found the law by consulting the breastplates which they wore (the Urim and Thummim)—that is, their legal decisions were justified in terms of divine revelation. In a society that is undergoing a political revolution, such as the Soviet Union in the first years after 1917, legal reasoning may dissolve into the reasoning of politics and class struggle. These variations strongly suggest that in any society there is an intimate connection between the logic, rhetoric, and discourse of law and the dominant beliefs of the society concerning religion, politics, and other aspects of social life, including its beliefs about the nature of reasoning itself. Legal reasoning seems to be most distinctive in those societies that have experienced the emergence of a special professional class of lawmen, with its own special professional traditions and institutional values; here special modes of logic, rhetoric, and discourse seem to have as part of their functions the preservation and further development of the legal profession’s traditions and values, although at the same time even in such societies the intimate connections between legal reasoning and other types of reasoning must be maintained if the legal profession is to retain the respect of the community as a whole.
Legal logic Many Western jurists of the eighteenth and nineteenth centuries sought to make legal reasoning conform to syllogistic logic. The rules of law declared by legislatures, courts, and legal scholars were viewed as major premises, and the fact situations of particular cases or the terms of particular legal problems were viewed as minor premises. The decision of a case, or the resolution of a legal problem, was thought to follow inevitably from a proper juxtaposition of the major and minor premises. Given a rule or doctrine defining burglary, or contract, or any other basis of legal duty, it was thought only to be necessary to determine whether or not a particular act fell within the definition in order to determine whether or not legal responsibility should attach to it. It was supposed by many that if the entire body of law could be summarized in a set of rules, the sole remaining task of law would be to classify particular facts under one rule or another.
This mechanical model of the application of rules to facts did not go unchallenged even in its heyday. In Germany, Rudolf von Jhering ridiculed a “jurisprudence of concepts” (Begriffsjurisprudenz) and called for a conscious legal policy of evaluating the social and personal interests involved in the legal resolution of conflicts (Interessenjurisprudenz). Similarly, in the United States, Oliver Wendell Holmes, Jr., in some of his writings, viewed the logical form in which judges announced their conclusions as a veil covering their views of public policy. The life of the law has not been logic; it has been experience, Holmes stated in 1881. By “logic” Holmes indicated he meant “the syllogism” and “the axioms and corollaries of a book of mathematics” by “experience” he meant “considerations of what is socially expedient.”
However useful syllogistic logic may be in testing the validity of conclusions drawn from given premises, it is inadequate as a method of reasoning in a practical science such as law, where the premises are not given but must be created. Legal rules, viewed as major premises, are always subject to qualification in the light of particular circumstances; it is a rule of English and American law, for example, that a person who intentionally strikes another is civilly liable for battery, but such a rule is subject, in legal practice, to infinite modification in the light of possible defense (for example, self-defense, defense of property, parental privilege, immunity from suit, lack of jurisdiction, insufficiency of evidence, etc.). In addition, life continually presents new situations to which no existing rule is applicable; we simply do not know the legal limits of freedom of speech, for example, since the social context in which words are spoken is continually changing. Thus legal rules are continually being made and remade.
Also the “minor premises”—the facts of particular cases or the terms of particular legal problems —are not simply “there” but must be perceived and characterized, and this, too, requires interpretation and evaluation. Indeed, the legal facts of a case are not raw data but rather those facts that have been selected and classified in terms of legal categories.
Finally, the conclusion, that is, the application of the rule to the particular case or problem, since it is a responsible decision directly affecting particular people in particular situations, is never mathematically inevitable but always contingent upon the exercise of judgment. In the telling words of Immanuel Kant, “there is no rule for applying a rule” that is, there are no rules that can tell us in advance, with certainty, how a particular judge (legislator, administrator, etc.) ought to resolve a concrete case or problem that is before him—and this would be true even though we were able to say in advance what rules are relevant to such a resolution. Once a legal conclusion is reached, it may often be stated in syllogistic form; but in the process of reaching it, the determination of the major and minor premises may have come last.
To say that legal reasoning cannot be reduced to the classical rules of formal logic is not, however, to deny that it has logical qualities. It is characteristic of legal reasoning that it strives toward consistency both of legal rules and of legal judgments; such a striving for consistency is implicit in the belief that law should apply equally to all who are subject to it and that like cases should be decided in a like manner. Even the judgments of the ancient Greek oracles were believed to reflect a hidden consistency. It is also characteristic of legal reasoning that it strives toward continuity in time; it looks to the authority of the past, embodied in previously declared rules and decisions, and it attempts to regulate social relations in such a way as to preserve stability. Finally, legal reasoning is dialectical reasoning; it is characteristically concerned with the weighing of opposing claims, whether expressed in legislative debate, in forensic argument, or the like. These three basic characteristics of legal reasoning impose upon it certain logical requirements.
The most pervasive form of legal logic is that of analogy, in the broad sense of the comparison and contrast of similar and dissimilar examples. Analogical reasoning is implicit in the striving for consistency; the striving for continuity (that is, historical consistency) also involves analogical reasoning, the analogies being found in past experience; similarly, the dialectical quality of legal reasoning involves comparison and contrast between the examples put forward by the opposing sides. (It should be noted that the term “analogy” also has a technical legal meaning, signifying the extension of a legal category to a situation which is “similar to” but not “the same as” those situations which the category “logically” includes; in contrast, we use the term “analogy” here more broadly and include under it the process by which it is determined that one situation is “the same as” another.)
In a legal system such as that of England or the United States, which stresses the authority of past judicial decisions (precedents), analogical reasoning in adjudication characteristically takes the form of (a) comparison of the fact situation before the court with the fact situations of previously decided cases in order to find a previously decided case Whose fact situation is comparable; (b) extraction from the previously decided comparable case of the principle upon which that case was decided; and (c) application of that principle to the case at hand. It is generally recognized that each of these three steps is dependent upon the other two. Moreover, the second step—the extraction of the principle of the previous case—is complicated by the fact that the principle expressly relied on by the court in deciding the previous case is not necessarily binding upon future courts. Even under a strict doctrine of precedents, at least as understood in the United States, a court, although bound by the decisions in previous cases, may reject the reasons previously given for those decisions—as, for example, where much broader reasons were given than were required. In technical terms, the court is not bound by (may treat as mere dictum) any statement made in a previous comparable case which was not necessary to the decision in that case; and even a reason stated by the previous court as the necessary ground for its decision may be treated as dictum, and not binding, if the later court considers that the same decision could have been reached on other (better) grounds. Thus what is binding on future courts— the “holding” of the case—is determined in part by its subsequent application to similar fact situations.
Reasoning by analogy of precedents has been called by one writer “the basic pattern of legal reasoning.” However, another characteristic method of legal reasoning—especially (but not exclusively) in legal systems that do not recognize the binding force of precedents—is to decide cases or resolve particular legal problems by analogy of doctrines expressed in statutes and in other forms of legal rules. To give an American example: in the latter part of the nineteenth century, most states enacted statutes giving married women the right to own their separate property, to make contracts, and to sue and be sued. Using the authority of such married women’s acts, many courts overruled various earlier precedents which made a wife and husband incompetent to testify for or against each other, which made a husband liable for his wife’s torts, which made one spouse not liable to conviction for stealing from the other, etc. These matters, although not dealt with specifically by the married women’s acts, were sufficiently similar to the matters with which the married women’s acts did deal that the policy of those acts was considered to be applicable. Such use of analogy of statute (or of legal doctrine) is especially prevalent in those countries of Europe in which the law is largely found in codes and in which the writings of leading legal scholars in interpreting the codes have more authority than judicial decisions.
Analogical reasoning, and especially reasoning from analogy of decided cases, is sometimes said to be “inductive,” as contrasted with “deductive” reasoning from legal rules. Such a characterization presupposes that the facts of cases are first analyzed and then legal principles are “inferred” from such facts. However, the distinction between the facts of a legal case and the legal principle governing those facts is not the same as the distinction sometimes drawn between the facts of a laboratory experiment and the hypothesis offered by the scientist to explain the facts. The facts of a legal case do not have an existence independent of the theory of liability applied to them. A collision between X and Y may be a “fact” which natural science can “explain” but whether or not X should be legally liable to Y, or Y to X, depends on whether or not X or Y was “negligent” or was carrying on an “extrahazardous activity” or was otherwise engaged in liability-creating conduct. Thus, as suggested earlier, the same kind of judgment that is required to determine the applicable legal principle (liability for harm caused by negligence, liability for harm caused by extrahazardous activity) is also required to characterize the legally operative facts (X drove negligently, X was engaged in an extrahazardous activity). To contend that since liability is imposed in situation A (for example, harm caused by collision of aircraft with ground structures, regardless of fault, air travel being considered an extrahazardous activity), and since situation B (for example, harm caused by automobile travel) is (or is not) comparable to situation A, therefore liability should (or should not) be imposed in situation B is an example neither of deductive nor of inductive reasoning, although it contains elements of each. It is an example of reasoning applied to reach decisions for action and, like the reasoning of a physician or an engineer or a politician, is based on a very large variety of considerations, many of which cannot be fully articulated.
Although reasoning by analogy is the primary form of legal logic, it is not sufficient in itself to compel particular legal results. There is, indeed, a large area of indeterminacy in all analogical reasoning, since the criteria for selecting similarities and differences are left open to debate. A rigid definition confining the term “logic” to those propositions that necessarily follow from given premises might therefore exclude analogy altogether. According to an old proverb, “For example’ is not proof.” Yet analogical reasoning, despite its flexibility, does impose limits upon legal results even if it does not in itself compel them. In each society some similarities and differences are so strongly felt that they cannot be denied. Moreover, particular legal doctrines often restrict the range within which analogies may be found. Most modern legal systems, for example, require that a criminal statute be interpreted much more “strictly” than a statute imposing only civil obligations; similarly, courts are generally more reluctant to extend analogies under rules of commercial law than under rules of personal injury law, since commercial rules are relied on in business transactions where a high degree of stability and predictability is desired. In addition, each legal system establishes procedures and methods for drawing analogies—such as adversary and investigative procedures or the method of precedent and the method of codification—and these procedures and methods are designed to prevent analogical reasoning from becoming arbitrary.
Analogical reasoning is, of course, a universal mode of reasoning and by no means unique to law. What is distinctive about law, in this respect, is the degree of emphasis placed upon the use of analogy and the development of special legal rules, procedures, and methods for drawing analogies. For law the method of analogy has the special virtue—as compared with syllogistic reasoning— of exposing the examples by which consistency, continuity, and the weighing of opposing claims and defenses are tested.
Legal rhetoric We define rhetoric, following Aristotle, as referring not only to the art of persuasion through appeals to emotions but also to the art of public deliberation through appeals to reason and hence as a mode of reasoning. At the same time rhetoric is distinguished from logic, since logic is concerned with indicative statements that are considered to be either true or false (“propositions”), whereas rhetoric is concerned with subjunctive, normative, and imperative statements uttered in order to influence thought or action. The classical formula of logic: All men are mortal, Socrates is a man, therefore Socrates is mortal— might be rendered in rhetorical form as: If you would be a man, O Socrates, you must prepare yourself for death!
Legal rules, being stated usually in the indicative mood, give the deceptive appearance of being only logical propositions; yet on closer analysis it is apparent that they have a rhetorical significance at least equally as great as their logical significance. The statement, for example, that the intentional premeditated killing of a person with malice aforethought constitutes the crime of murder in the first degree and is punishable by life imprisonment or death is not only a “true proposition” concerning what is murder (assuming it has been authoritatively declared); it is also a warning to potential murderers, an assurance to potential victims, a mandate to law enforcement officials, and, in general, an expression of the desires and beliefs of the political community. Legal reasoning with respect to the crime of murder consists, therefore, not only in the logical analysis of its definition, involving the comparison of various kinds of homicide (for example, homicide committed from motives of mercy, in self-defense, in the heat of passion, negligently, etc.); it also consists in both legislative and forensic rhetoric (“the death penalty should be abolished” “the defendant is not a murderer”) as well as in other, less formal types of argumentative speech (for example, “a person should certainly not escape responsibility for murder just because he believed his act would benefit society”).
As the logical aspect of legal reasoning focuses attention on legal rules and on the principles to be derived from decisions in analogous cases, so the rhetorical aspect of legal reasoning focuses attention on legal activities. As many writers have emphasized, law itself is not simply, or primarily, a body of rules but an activity, an enterprise. A principal purpose of this enterprise is to subject human conduct to the governance of rules (Fuller 1964); but for that purpose rules must be drafted, debated, voted, published, interpreted, obeyed, applied, enforced—all of which legal activities involve the use of rhetoric and not only of logic. Moreover, apart from activities connected with rule making, it is also a purpose of the legal enterprise to render decisions, as by the casting of votes, the issuance of orders, the handing down of judgments; and the rendering of such decisions, like the making of legal rules, is both a product and an expression of rhetorical utterance. In addition, legal reasoning is directed to the negotiation of legal transactions, the making of petitions or recommendations, the writing of legal opinions, the issuance of legal documents, and to a variety of other types of legal activities, all of which involve the use of language to induce a response in those to whom the language is addressed.
As the use of analogy is a characteristic and pervasive form of legal logic, so the appeal to authority is a characteristic and pervasive form of legal rhetoric. The nature of the authority to which appeal is made differs in different legal systems. It is said, for example, that in traditional Muslim law the authority of the Koran is decisive and that only a literal interpretation of its provisions is permissible. In Judaic law, on the other hand, with the development of the Talmud, there emerged the authority of leading rabbis who interpreted the Torah. In Roman law a similar authority was vested in leading jurists. We have already referred to the authority of judicial precedents in English and American law and of codes in modern continental European law. Probably the highest authority governing judicial decisions in most contemporary legal systems is that of statutes enacted by the legislature, although in the United States and some other countries the authority even of statutes must yield to that of constitutional provisions.
The appeal to authority in legal reasoning is not necessarily limited, however, to an appeal to legislation (whether embodied in statutes, codes, an authoritative book, or in a constitution), to judicial precedents, or to juristic commentaries on such legislation or precedents. In many legal systems— and perhaps in all—some room, at least, is left for appeal also to custom (that is, what is commonly done and what is commonly believed ought to be done) and to a sense of justice. Thus it is often said that there are four sources of law: legislation (including rules made by administrative authorities), precedent, custom, and equity. These four sources may also be viewed as four dimensions of law—legislation (and administrative rules) being directed to what should be done in the future, precedent being directed to what has been done in the past, custom being directed to outer social patterns and norms of behavior, and equity being directed to the inner sense of justice or fairness. Different legal systems, and different branches within a particular legal system, emphasize one or another of these four dimensions or sources or types of authority, and hence legal rhetoric is not uniform as between different legal systems or even within a single system. In American law, for example, the legislation-based rhetoric of a traffic regulation (“parked cars will be towed away”) differs from the precedent-based rhetoric of a judicial decision (“this court has consistently held that the manufacturer is not liable to retail purchasers unless he is shown to have been negligent”) and both of these differ from the custom-based rhetoric of a negotiable instrument (“pay to the order of John Jones $1,000”) or the equity-based rhetoric of a divorce decree (“the father may have the child visit him four times a year for a week at a time”).
Legal discourse It is apparent that legal logic is itself a form of legal rhetoric. Legal rhetoric, in turn, is a form of legal discourse, whose functions go beyond that of influencing immediate thought and action and include the preservation and development of the legal traditions and values of the entire political–legal community as well as the traditions and values of the legal profession itself in societies where a legal profession exists.
The distinctive characteristics of legal discourse arise principally from the institution of the hearing, which is the basis of all legal activities, including not only adjudication but also legislation, administration, negotiation of legal transactions, and other legal activities. It is the opportunity of both sides to be heard that principally distinguishes adjudication from vengeance. Similarly, it is, above all, the opportunity to debate pending enactments that distinguishes legislation from mere commands, and it is the opportunity to petition for relief that distinguishes lawful administration from bureaucratic fiat. Even a unilateral legal act such as the writing of a will requires the draftsman to put himself in the position of third persons who might be called upon to interpret the will in the light of a dispute over its validity or meaning.
A legal hearing involves two qualities of discourse that are not necessarily present in nonlegal procedures of listening and speaking. The first quality may be described as formality, that is, the use of a deliberate and ceremonial form of discourse, which usually is reflected in a formal presentation of claims and defenses, formal deliberation of the court or other tribunal, and the formal rendering of a decision. The formalities of the hearing help to secure its objectivity, that is, its impartiality, internal consistency, restraint, and authority.
A second distinctive quality of discourse characteristic of a legal hearing is the tendency to categorize the persons and events that are involved. The specific, unique qualities of the dispute are named in general terms. John Jones is called “the plaintiff” Sam Smith is called “the defendant” the defendant is alleged, for example, to have broken a “lease” by causing certain “damage” to the leased “premises.” These are the “legally operative facts.” The “real” facts—Smith’s obnoxious personal habits, the neighbors’ gossip, the family feud, etc.—are excluded unless they can be brought into relevant legal categories. This helps to secure the generality of the hearing. For the issue is not whether John Jones or Sam Smith is the better man but rather whether the rights of a lessor, rights established by the law of the community, have been violated by a lessee.
The formulation of the dispute or problem in terms of general categories, and thus the viewing of the concrete facts sub specie communitatis, is organically derived from the hearing, although it is logically distinct from it. The dispute or the problem has challenged the existing legal rules; the parties have invoked a reformulation of them in the light of the concrete facts; and the court (if it is a judicial proceeding), or legislature (if it is a proposed statute), or administrative agency (if it is a new regulation that is sought), or lawyer (if it is a contract that is being negotiated or a will that is being drawn) is asked to reinterpret the existing rules or to create new rules in the light of the new dispute or new problem. Categorization of the specific, unique facts, carried out in the context of a deliberate and ceremonial presentation of claims and defenses with a formal procedure for interrogation, argument, and decision, helps to secure the generality and objectivity not only of the hearing but also of the reinterpreted or newly created rules and hence their acceptance by the community. At the same time, the legal vocabulary and techniques that are generated in this process provide a professional shorthand or jargon that is designed to contribute to the efficiency of legal procedures or to the fraternity of the legal profession, or to both, although it often has the effect of making both law and lawyers seem alien to the society that has produced them.
The circularity of legal reasoning If law is seen, in the first instance, not as rules but as the enterprise of hearing, judging, prescribing, ordering, negotiating, declaring, etc., then it becomes possible to give a satisfactory explanation of what Jeremy Bentham called the tautology and circuity of legal terms and what H. L. A. Hart calls the “great anomaly of legal language—our inability to define its crucial words in terms of ordinary factual counterparts” (1953, p. 41). It is, indeed, true that legal reasoning characteristically appears to be circular. When it is said, for example, that a man has a “right” to something because someone has an “obligation” to transfer it to him, the “right” of the one and the “obligation” of the other seem to be merely two different terms for the same thing. Similarly, the word “crime” and the word “law” themselves seem to be only alternative ways of saying “right,” “obligation,” etc. Bentham wrote:
Each of these words may be substituted the one for the other. . . . The law directs me to support you—it imposes upon me the obligation of supporting you—it grants you the right of being supported by me—it converts into an offence the negative act by which I omit to support you—it obliges me to render you the service of supporting you. . . . This, then, is the connexion between these legal entities: they are only the law considered under different aspects; they exist as long as it exists; they are born and they die with it. ... The legal terms seem to have no “empirical referents”— no “things” to which they “correspond.” (Bentham’s Theory of Fictions, pp. cxxix–cxxx)
The proliferation of interdependent legal terms referring to the same thing is due to the fact that the terms are not supposed to “refer” to “things” but instead to regulate a complex interrelationship of people engaged, actually or potentially, in legal activities of various kinds. From the standpoint of the child, support is a “right” from the standpoint of the parent, it is an “obligation” from the standpoint of the prosecutor, failure to fulfill the obligation may be a “crime.” It is true that if there were no right there would be no obligation and no crime, and if there were no crime there would be no obligation and no right (or at least a different kind of obligation and right). But these (and many other) terms are needed to identify the complexity of the relationship between the child, the parent, and the state; they are needed especially when the relationship is described in abstract terms. The decision of the court may be simple enough: “Pay $25 a week for support of the child or go to jail.”
It may seem senseless for courts or writers to go (as they sometimes do) from right to obligation to penalty as if in a logical sequence. Yet what may be senseless as a logical proposition may be sensible as a means of identifying the parties to a dispute and the nature of the disputed issue. To attack legal rules as question-begging is itself to beg the question of their function. Indeed, in some cases it is the function of judicial tautology and circularity to avoid giving a reason for a decision in a situation in which it is better to give no reason than to give the real reason. This is apt to be especially true of legal fictions, which are legal doctrines that state a legal result in terms of assumed facts that are known to be nonexistent. Here what are understood to be only analogies are consciously treated as identities, in order to preserve consistency of doctrine in the face of an unexplained inconsistent result. For example, a battery is traditionally defined as an unpermitted blow which the defendant intended to inflict on the plaintiff, but the courts nevertheless give a recovery to a person whom the defendant struck unintentionally while intending to strike another, applying the fiction that the defendant’s intent to strike the third person is “transferred” to the person whom he in fact struck. Thus the original definition is preserved in form but its consequences are changed. In most cases, however, legal tautologies and circularities are not intended to change the consequences of legal rules but are primarily a means of specifying the various aspects of legal relationships, often for procedural reasons. In any event, not only circular but also other “unscientific” qualities of law may often be understood if they are seen as part of the logic of analogy, the rhetoric of appeals to authority, and the discourse of formality and categorization that are the distinguishing characteristics of legal reasoning.
Legal reasoning and social science Despite important insights into the nature and functions of legal reasoning contributed by such classical sociologists as Émile Durkheim and Max Weber (both of whom were legally trained), modern social science has left the subject largely to legal scholars. However, recent sociological studies of the professions have, following Weber, related legal reasoning to the need of the legal profession to have its own professional language; and in the last two decades many American political scientists have attempted to debunk legal reasoning as a disguise for judicial decisions reached on the basis of non-legal considerations. More important, probably, at least in the long run, are studies by social scientists not of legal reasoning as such but of legal institutions, such as the jury system, civil rights legislation, criminal law enforcement, collective bargaining, the antitrust laws, etc., since such studies provide a necessary foundation for any generalizations about the relationship of legal reasoning to other types of reasoning. In the meanwhile, studies of legal reasoning by legal scholars —who are also social scientists—will continue to benefit from social science theories and methods directed to the study of social institutions generally, including legal institutions. Indeed, social science theories and methods sometimes have a direct impact on legal reasoning itself when they are introduced into legal proceedings through, for example, legislative hearings and, occasionally, court cases in which social scientists are called in as experts.
Social sciences other than law may, however, have more to learn from an understanding of legal reasoning than they have to contribute to such an understanding. Since law is a practical social science, in which principles of order and justice accepted by a given society are applied to the reaching of reasoned decisions for action, the legal profession (including legislators, judges, administrators, and legal scholars, as well as practicing lawyers) is highly sensitive to the relationship between theory and practice, and, more specifically, to the relationship between reasoning and the social context in which it takes place. Thus legal experience not only provides a wealth of data for investigation by social scientists but also has much to teach them concerning the nature of social science. Indeed, legal reasoning challenges the belief that any social science can properly avoid the question of its applicability to society; it challenges, therefore, the theory of a “value-free” social science based upon the methods of the physical sciences or of mathematics. Such a challenge is inherent in the emphasis which law places on the connection between what is said and the role of the speaker, as well as in the assumption implicit in law that a judgment affecting persons is not merely an observation or measurement of external facts but also a response to the language addressed to the person making the judgment, and that a proper judgment is itself addressed to the participants in the proceedings in which it is made.
Harold J. Herman
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