ELEVATED THOUGHT PROCESS IN JUDICIAL REASONING

By

Uchechukwu Ngwaba

I Introduction

Judicial reasoning interrogates the thought process of judges in the course of adjudication. Of

this Perelman writes that it “…is the reasoning of the judge as disclosed in the grounds of his

judgment.”1 The engagement with judicial reasoning has spawned many schools of thought.

2 At

the root of the interest generated by the subject matter is the desire to understand how judges

reason and why they adopt a particular mode of reasoning as opposed to another. The thought

process is therefore a very significant factor in understanding judicial reasoning. For the judge

who has the responsibility of adjudication, the objective becomes knowing how best to fashion

his thought process to arrive at the most acceptable result in the adjudication process. To the

extent that judges are pre-occupied with getting their thought process right, the question

becomes: “What is so significant about the thought process in judicial reasoning that

distinguishes it from the thought process of humdrum living?” This chapter is a reflection along

these lines.

In pursuing the foregoing objective, the chapter partitions into four parts. In part two, we

examine the concept of judicial reasoning. In part three, we discuss the construct of the human

thought process. In part four we examine judicial reasoning as an elevated thought process. In

part five we conclude the chapter.

LL.M (Lagos), LLB (Jos); Research Fellow, Nigerian Institute of Advanced Legal Studies, Lagos, Nigeria;

uche.ngwaba@gmail.com. 1 See Chaim Perelman, “Judicial Reasoning” (1966) 1 Isr. L. Rev 373. 2 In this category are legal formalism, legal realism and determinism.

II Conceptualizing Judicial Reasoning3

Disagreements about the reasoning process of judges in the course of judicial decision making

have resulted in different theories of judicial reasoning. Hence, developing an understanding of

the concept of judicial reasoning would necessarily implicate an examination of each of these

theories.

Contemporary theories of judicial reasoning, according to Gross, “rest on three

explanatory frameworks: formalism, intuitionism and determinism.”4 This chapter would adopt

the above classification in its examination of the concept of judicial reasoning.

(A) Formalism

The central postulate of legal formalism is that “judicial decision-making requires merely the

deductive application of pre-existing rules.”5 A broader definition that has been offered is that it

is “the rational application of pre-existing principles.”6 In this broader context, legal formalism

approximates with current notions of lawfulness. In contemporary discourse of judicial

reasoning, legal formalism has come to dominate the approach of analytical jurisprudence and

the scholarly tradition.7

3 This section was originally written for a book chapter titled “Judicial Reasoning in the Appellate System” and

submitted for publication in a book project of the Nigerian Institute of Advanced Legal Studies on the Court of

Appeal of Nigeria. At the time of writing this chapter, the book project referred to was awaiting publication. 4 See Peter W. Gross, “The Theory of Judicial Reasoning – Toward A Reconstruction” (1977-1978) 66 Ky. L.J. 801,

802. 5 The model of legal formalism reigned in America in the latter half of the 19th century. See generally Horwitz, The

Rise of Legal Formalism (1975) 19 AM. J. LEGAL HIST., 251. The theory was deposed by the legal realists; see

also Peter W. Gross, Ibid at n3; see also Vincent A. Wellman, “Practical Reasoning and Judicial Justification:

Toward an Adequate Theory” (1985-1986) 57 U. Colo. L. Rev. 46. 6 See Peter W. Gross, fn 4 at 801-2. 7 Ibid.

(i) Analytical Jurisprudence

Reasoning by analogy has been touted to be possessed of epistemic and institutional advantage

on the basis that:

…it produces a wealth of data for decision making; it represents the collaborative effort

of a number of judges over time; it tends to correct biases that might lead judges to

discount the force of prior decisions; and it exerts a conservative force in law, holding the

development of law to a gradual pace…8

The model of analogical reasoning can be simplified in this manner: ‘confronted with an

unsettled question, the judge surveys past decisions, identifies ways in which these decisions are

similar to or different from each other and the question before him/her,’ after such a survey, the

judge ‘develops a principle that captures the similarities and differences he/she considers

important. This principle in turn provides the basis for the judges own decision.’9

Henry Hart and Albert Sacks refer to this method of judicial decision making as

“reasoned elaboration” of law, which is distinguished from an exercise of “discretionary fiat.”10

The virtue of reasoned elaboration, Hart and Sacks suggest, is that “it forces courts to decide

cases in a manner that is consistent with the expectations of the parties at the time they acted.”11

This in turn allows the law to be predictable even as it evolves to fit new cases.12

Another remarkable contribution to the scholarship on legal reasoning by analogy comes

from Edward Levi. In his An Introduction to Legal Reasoning13

Levi characterises reasoning by

8 Emily Sherwin, “A Defense of Analogical Reasoning in Law” (1999) 66 U. Chi. L. Rev. 1179. 9 Ibid at 1179 – 80. 10 Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of

Law in Williams N. Eskridge, Jr. and Philip P. Frickey, eds (Foundation 1994) 147-48, 372-77 referred to in Emily

Sherwin, fn 8 above. 11 Hart and Sacks, Ibid at 398. 12 Emily Sherwin, fn 8 above. 13 Edward Levi, An Introduction to Legal Reasoning (Chicago, 1948)

example as a three step process. First, the judge sees a similarity between cases. Second, the

judge announces the rule inherent in the first case. Third, the judge applies the rule of law to the

second case.14

In spite of his characterization, Levi perceives analogical argument as being

inferior to other forms of argument. He notes in this regard that “[i]t seems better to say there is

reasoning, but it is imperfect.”15

In drawing this conclusion, he attracts strong criticisms from

proponents of analytical jurisprudence.16

In Law’s Empire, Ronald Dworkin describes the traditional method of legal reasoning by

analogy as a source of “integrity” in law.17

Dworkin explains that, ‘the task of judges is to

construct legal principles that meet a threshold of “fit” with prior decisions and at the same time

represents the “best” possible understanding of those decisions according to the judge’s own

moral and political sense. In Dworkin’s conception, the virtue of principles that can be fitted to

existing legal materials is that they “secur[e]” a kind of equality among citizens and makes their

community more genuine and improves its moral justification for exercising the political power

it does.’18

More recently than the other works in this area, Cass Sunstein has defended analogical

reasoning in law as ‘one of several ways in which a society can reach practical agreement against

a background of moral controversy. In Sunstein’s version of legal reasoning, judges reason from

case to case, arriving at low-level reasons why some cases are relevantly similar to others

14 Ibid at 2. 15 Ibid at 3. 16 James Murray, for instance, writes in criticism that: “Levi’s characterization of this point reflects a

misunderstanding of the difference between deductive logic and reasoning. Levi implies that in some sense

deduction is “better than” induction, which in turn is “better than” analogical argument. Yet no evidence supports

this qualitative judgement. At least in the vast area of plausibility, where deduction is inapposite, analogy is the only

viable logical method. In that realm, analogy cannot be second best because it is the only method. See James R.

Murray, “The Role of Analogy in Legal Reason” (1981-1982) 29 UCLA L. Rev. 833, 849. 17 Ronald Dworkin, Law’s Empire (Belknap, 1980) 94-96, 225-75 referred to in Emily Sherwin, fn 8. 18 Ibid at 96.

without developing a full theory of decision.’19

The advantage of this method, for Sunstein, is

that ‘people who disagree at the level of comprehensive theory may nevertheless be able to agree

on low-level analogies among cases. By fixing on modest principles of similarity, courts can

settle pressing questions while not taking controversial moral and political positions that are

difficult for judges to concur in and for parties to accept.20

Analogy, as we can see from the foregoing, has no lack of scholarly support justifying its

claims. The basis for its support is easily seen in Judge Coffin’s remark to wit:

My clerks develop their own judicial noses and help frame questions to test a party’s law,

logic, or common sense. One of the oldest and yet more sophisticated device is the

analogy….[I]t is a way, and a good one, of testing whether a rule that may make sense in

the case being argued is consistent with rules governing other basically similar situations.

Analogy is an instrument of consistency in the law.21

Its claims have however also being the subject of attack by legal realists. The content of this

attack would be examined in detail under the discussion on intuitionism.

(ii) The Scholarly Tradition

Gross writes that ‘while analytical jurisprudence seeks systematic description of the principles

which govern judicial decisions, the scholarly tradition seeks standards of quality and validity to

direct the appraisal of individual decisions. Like the analytical jurists, the scholars view judicial

decision as essentially the rational application of ascertainable principle.’22

Their response,

19 Cass R, Sunstein, Legal Reasoning and Political Conflict (Oxford 1996) 65 – 69 referred to in Emily Sherwin, fn

8, 1181. 20 Ibid at 41. 21 F. Coffin, “The Ways of a Judge: Reflections From the Federal Appellate Bench” (1980) 105

22 See Peter W. Gross, fn 4 above at 806

according to Gross, ‘is a defense of formalism that rest on three strategies: minimization of value

choice, ordering of values and isolating value choice.’23

Herbert Wechsler, in one of the seminal works of the scholarly tradition, called for

“neutral principles” of constitutional law,24

he acknowledged that constitutional decision is often

“political” in the sense that it requires choice among conflicting values.25

The emphasis of the

scholarly tradition has been critique of judicial decisions according to cannons of “reasoned

elaboration”26

whereby quality of and validity are functions of “thoroughness, soundness, clarity

and internal consistency.”27

According to Gross, ‘this pursuit yields a body of criticism reflecting

two assumptions. The first assumption is that if one can logically demonstrate faults in the

reasoning of a judicial opinion, the opinion is defective. The second assumption is that having

shown an opinion to be defective is to have demonstrated it to be doctrinally incorrect. The meta-

assumption, then, is that by rigor of critical analysis doctrinal disagreement can be cut through

and resolved.’28

In interrogating the place of scholarly criticism, John Hart Ely argues that scholars have

neglected the roles of value in constitutional decision.29

What is needed, in Ely’s view, is

criticism identifying “misperceptions” of, and “unjustifiable inferences” drawn from, the “value

structure set forth” in the Constitution.30

According to Gross, Ely succeeds in invoking the strand

23 Ibid at 807 24 Wechsler, “Towards Neutral Principles of Constitutional” Law (1959) 73 Harv. L. Rev. 1 referred to in Peter W.

Gross, fn 4 above at 807 25 Ibid at 15. 26 See generally White, “The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change”

(1973) 59 VA. L. Rev. 279, 286. 27 Ibid at 290. 28 See Peter W. Gross, fn 4 above at 807-8. 29 John Hart Ely, “The Wages of Crying Wolf, A Comment on Roe v. Wade” (1973) 82 Yale L.J. 920, 944

30 Ibid.

of the scholarly tradition emphasising interpretation of rules according to the value or purposes

that underlie them.31

Alexander M. Bickel, on his part, stresses self-restraint in the choice “whether, when, and

how much to adjudicate.32

In Bickel’s view, such a choice is a function not of principled

adjudication but of expedience. Broadly developing this principle-expedience dichotomy, Bickel

develops a realm of rational principle that courts apply but must compromise and even

contravene when expedience dictates self-restraint.33

Implicit in Bickel’s theory is the

assumption that “law” and “policy” are two separate realms;34

that judges are to function in a

realm characterized by rational application of principle and shift to ad hoc value-based decision

in “emergencies.”35

(B) Intuitionism

Intuitionism is another name for legal realism which arose primarily to debunk the theoretical

validity of formalism. While legal realism as a movement was largely spent by the 1940s, its

tradition continues to influence much thought about judicial decision.36

As a school of thought,

legal realism began in the 1920s under the inspiration of Supreme Court Justice Oliver Wendell

Holmes. The legal realists criticised the existing legal tradition as formalistic and misguided in

its concentration on logic, and especially deduction, in the judicial decision-making process. The

realists reacted to writers who had argued that “[t]he rules of the law are founded upon principles

31 See Peter W. Gross, fn 4 above at 809. 32 Alexander Bickel, “The Least Dangerous Branch (1962) 197 referred to in Peter W. Gross, fn 4 above at 810. 33 Ibid at 184-98 34 See Hughes, “Rules, Policy and Decision-Making (1968) 77 Yale L.J. 411, 427 referred to in Peter W. Gross, fn 4

above at 811 35 See F. Cohen, “Ethical Systems and Legal Ideals (1959) 31; Cohen, “Field Theory and Judicial Logic (1950) 59

Yale L.J. 238, 259-60. Referred to in Peter W. Gross, fn 4 above at 811. 36 See generally Peter W. Gross, fn 4 above at 812.

of right and justice that never change,”37

or that “[e]very judicial act resulting in a judgment

consists of a pure deduction.”38

Legal realists viewed analogical reasoning as infinitely malleable and therefore scorned

the notion that it could restrain judges from doing as they pleased.39

They criticised a tradition

that had espoused the belief that reason and logic would always succeed in giving certainty and

coherence to the judicial decision.40

‘They insisted that law and judicial decisions were not

susceptible to logical analysis. According to the realists, the proper focus of attention was on a

judge’s personality and habits; a judge’s values, motives, and even what he had for breakfast

were relevant to an analysis of legal decision-making. They argued that legal decisions were not

compelled by reason or logical deduction, but rather by what result the judge wanted to reach.

The realists therefore advised theorists to turn their attention to a sociological and psychological

examination of the legal system and of judges, rather than to an analysis of the logic of judicial

decisions.’41

Legal realists challenged the claim that judges merely applied existing rules. For them,

‘judicial opinions were simply after the fact rationalizations, of a more or less arbitrary nature,

made by the judge according to his own political and moral inclinations. The rules that judges

cited in their opinions were simply cosmetic devices to mask the judge’s creation of new law.’42

For example, rather than viewing rules as potential premises for logical arguments, Karl

37 See C. Bacon & F, Morse, The Reasonableness of Law (1924) at iii referred to in James R. Murray, fn 16 above at

835 (n7). 38 See Zane, “German Legal Philosophy” (1918) 16 MICH. L. REV. 287, 338 referred to in James R. Murray, fn 16

above at 835 (n7). 39 See, for example, Karl N. Llewellyn, The Bramble Bush (Oceana 1969) 66 – 69 referred to in Emily Sherwin, fn 8

above 1183. 40 See E. Purcell, The Crisis of Democratic Theory (1973) 74 – 94 referred to in James R. Murray, fn 16 above at

835 (n7). 41 See James R. Murray, fn 16 above at 835 (n7). 42 Ibid.

Llewellyn thought that rules were “important to you so far as they help you see or predict what

judges will do…. That is all their importance, except as pretty playthings.”43

Murray notes that legal realism provided many valuable insights to judicial decision-

making function. But their theory was problematic due to its conclusion that because an

examination of sociological and psychological factors is helpful in understanding the judicial

decision, it therefore demonstrated that judge’s justification of their decisions are irrelevant and

that judges claims that they are applying existing rules are specious.44

Legal realism has suffered

extensive challenge from legal philosophers, especially legal positivists.45

As noted earlier, legal

realism as a movement is now spent, however its legacy lives on.46

Its utility lies mainly in

providing an understanding of the active creative role played by the judge in the judicial

decision-making process.

(C) Determinism

Two deterministic modes of thoughts exist about the nature of judicial decision.47

These are

identified as “personalistic determinism” and “institutional determinism”.48

43 See K. Llewellyn, fn 39 above at 14. 44 See James R. Murray, fn 16 above at 835 (n7). 45 See J. Austin, The Province of Jurisprudence Defined (1832); H. Kelsen, The General Theory of Law and State

(1945); J. Bentham, The Limits of Jurisprudence Defined (1945); H.L.A Hart, The Concept of Law (1961). In

confronting the criticisms of realists directly, Hart provided a detailed analysis of the importance of the notion of

rule in a legal system. Hart did not deny the active creative role played by the judge in a legal system that the realists

had outlined. Rather, he argued that the entire notion of judicial discretion makes sense only when we conceive of

law as a system of rules with “open texture” and a certain degree of indeterminacy. Ibid at 121-50. 46 In An Introduction to Legal Reasoning, E. H. Levi portrays judicial decision in terms of organic growth in the law

whereby the “concepts” that express the law change in response to changed conditions in society. See E. H. Levi, fn

24 above. While Levi does not use the term, it is implicit in his model that judicial “intuition” is validated as the

vehicle by which the judge registers and implements in law the changed “concepts” of society. See Ibid at 6, 8

referred to in Peter W. Gross, fn 16 above at 814; the legacy of legal realism is also visible in “rule skepticism” – a

predisposition to doubt the importance of rule following and rule formulation in judicial decision. See Peter W.

Gross, Ibid. 47 See generally Shapiro “Political Jurisprudence” (1964) 52 KY. L.J. 294, 307-16. 48 See Peter W. Gross, fn 4 above at 815.

(i) Personalistic Determinism

Gross writes that ‘intuitionism is one of the legacies of the legal realists movement; “judicial

behaviourism” is another.49

Proceeding on the legal realist assumption that judicial decision is a

function not of rule but of human value judgement, judicial behaviourism searches for causes

which govern decision. Biographical, ideological, and similar aspects of the life and character of

the judge are viewed as cause and the decision as effect. Not only is judicial judgment rendered

“lawful” in the same sense that all causally explicable phenomena are lawful, it is made

predictable as well. Moreover, if, as the legal realists maintain, the law is what judges decide it to

be,50

the key to a systematic statement of “the law” is a systematic prediction of what judges will

decide.51

(ii) Institutional Determinism

Institutional determinism is grounded in political theory. It views courts as part of a system that

subjects all organs of government to public control. The most graphic paradigm for this

arrangement is cybernetics, in which information, action and reaction make the parts of a system

one functionally coherent whole.52

Legitimation of the judicial function rests on forces that cause

courts to reflect public needs and wishes.53

While the means may be as direct as the selection of

judges by election or appointments,54

there is, especially in the case of constitutional law, a more

amorphous set of processes whereby a “dominant alliance” or “successful coalition” of the

49 For an overview, see Danelski, “Towards Explanation of Judicial Behaviour” (1973) 42 U. Cin. L. Rev. 659

referred to in Peter W. Gross, fn 4 above at 815. 50 See Llewellyn, fn 39 above at 12, 52. 51 See Peter W. Gross, fn 4 above at 816. 52 See D’Amato, “Towards a Reconciliation of Positivism and Naturalism: A Cybernetic Approach to a Problem of

Jurisprudence (1975) 14 W. Ont. L. R. 171 referred to in Peter W. Gross, fn 4 above at 816. 53 See generally G. Schubert, The Constitutional Policy (1970) referred to in Peter W. Gross, fn 4 above at 816. 54 American Presidents have been known to shape the ideological leaning of the Supreme Court of America by the

appointments they make to fill vacant seats on the Supreme Court Bench.

public keeps the courts responsive to its wishes.55

These processes may be tied to personalistic

determinism, as in the case of “mechanisms of internalization” by which judges come to absorb

the “community consensus” or the community agenda.”56

III The Construct of the Human Thought Process

Man’s cognitive abilities, more than any other attribute, sets him apart in the pyramid of living

things as a higher being. The quest to understand the human thought process has led to the

flourishing of the cognitive sciences as a unique disciplinary endeavour. This quest has been

carried to as far as the realm of scientific experimentation. As Cole notes in this regard,

“[t]hinking about thinking and consciousness and the relation of the mental to the physical

seems, not surprisingly, to invite thought experiments.”57

Cole observes that “thought experiments have been used over the past 250 years to show

that no machine could embody thought, understanding or sentience.”58

He identifies the

machines used to prove this fact as including mechanical, biological (the human brain), and most

recently digital electronic systems.59

Cole however argues against the validity of the postulate of

these experiments and sets about debunking their claims. While it is not our intention to engage

in this controversy, an important question which arises for our consideration is as regards the

context of the human thought process. Can there be found any theoretical basis to explain the

construction of human thought?

55 See Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-maker” (1957) 6 J. Pub. L.

279, 285, 293-94 referred to in Peter W. Gross, fn 4 above at 816. 56 See Deutsch, “Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political

Science” (1968) 20 STAN. L. REV. 169, 259 referred to in Peter W. Gross, fn 4 above at 816-7. 57 See David Cole, “Thought and Thought Experiments” (May, 1984) 45(3) Philosophical Studies: An International

Journal for Philosophy in the Analytic Tradition 431 58 Ibid. 59 Ibid.

In responding to this poser, we commence from the known to the unknown. What is

known is that ‘the word “true” indicates the aim of logic as does “beautiful” that of aesthetics or

“good” that of ethics. All sciences have truth as their goal; but logic is also concerned with it in a

quite different way from this.’60

To discover truths is the tasks of all sciences; it falls to logic to

discern the laws of truth.61

A duality in meaning arises when we speak of laws of morals or the

state. In this case ‘we mean regulations which ought to be obeyed but with which actual

happenings are not always in conformity. Laws of nature, on the other hand, are the

generalization of natural occurrences with which the occurrences are always in accordance.62

Thus, while in the former context, law is a weak entity open to violation, in the latter context,

violation is hardly possible.

Evident from the foregoing analysis is the indeterminacy of value notions in the

characterization of concepts. Thus, value notions like truth are demonstrated to be fluid

conceptions. Yet they are significant markers helping us discern the relative position and

importance of the concepts which they modify.

Rules for asserting, thinking, judging, inferring, follow from the laws of truth. Thus, one

can speak of the law of thought. A “law of thought” is interpreted by analogy with “law of

nature”.63

A law of thought in this sense would be a psychological law. The assertion of both

what is false and what is true takes place in accordance with psychological laws.64

A derivation

from these and an explanation of a mental process that terminates in an assertion can never take

the place of a proof of what is asserted. Could not logical laws have played a part in this mental

60 Gottlob Frege, “The Thought: A Logical Inquiry” (Jul., 1956) 65(259) Mind, New Series 289. 61 Ibid. 62 Ibid. 63 Ibid. 64 Ibid at 290.

process?65

In this regard we see the possibility of blurring of the boundary between psychology

and logic. To avoid this possibility, Frege advises that it is best to assign to logic the task of

discovering the laws of truth, not of assertion or thought.66

What meaning then can we ascribe to

truth? The attempt at a definition of the notion of truth has met with great difficulty.67

Frege

explains this difficulty as follows:

For in a definition certain characteristics would have to be stated. And in

application to any particular case the question would always arise whether

it were true that the characteristics were present. So one goes round in a

circle. Consequently, it is probable that the content of the word “true” is

unique and indefinable.68

65 Ibid. 66 Ibid. 67 Frege wirtes in this regard that: ‘Grammatically the word “true” appears as an adjective. Hence the desire arises to

delimit more closely the sphere in which truth can be affirmed, in which truth comes into the question at all. One

finds truth affirmed of pictures, ideas, statements, and thoughts. It is striking that visible and audible things occur

here alongside things which cannot be perceived with the senses. This hints that shifts of meaning have taken place.

Indeed! Is a picture, then, as a mere visible and tangible thing, really true, and a stone, leaf, not true? Obviously one

would not call a picture true unless there was an intention behind it. A picture must represent something.

Furthermore, an idea is not called true in itself but only with respect to an intention that it should correspond to

something. It might be supposed from this that truth consists in the correspondence of a picture with what it depicts.

Correspondence is a relation. This is contradicted, however, by the use of the word “true” which is not a relation and

contains no reference to anything else to which something must correspond. If I do not know that a picture is meant

to represent Cologne Cathedral then I do not know with what to compare the picture to decide on its truth. A

correspondence, moreover, can only be perfect if the corresponding things coincide and are, therefore, not distinct

things at all. It is said to be possible to establish the authenticity of a banknote by comparing it stereoscopically with

an authentic one. But it would be ridiculous to try to compare a gold piece with a twenty-mark note stereoscopically.

It would only be possible to compare an idea with a thing if the thing were an idea too. And then, if the first did

correspond perfectly with the second, they would coincide. But then there can be no complete correspondence, no

complete truth. So nothing at all would be true; for what is only half true is untrue. Truth cannot tolerate a more or

less. But yet can it not be laid down that truth exists when there is a correspondence to a certain respect? But in

which? For what would we then have to do to decide whether something were true? We would have to inquire

whether it were true that an idea and a reality, perhaps, corresponded in the laid-down respect. And then we should

be confronted by a question of the same kind and the game could begin again. So the attempt to explain truth as

correspondence collapses. And every other attempt to define truth collapses too.’ See Gottlob Frege, fn 60 at 290-1 68 Gottlob Frege, fn 60 at 291.

Working on the basis of Frege’s explanatory model, he conceives of “a thought”

as something for which the question of truth arises. Notions of truth and falsehood, he

argues, can equally be ascribed to a thought. On this basis he claims that the thought is

the sense of the sentence. The thought, in itself immaterial, clothes itself in the material

garment of a sentence and thereby becomes comprehensible to us. To this extent, he sees

the sentence as expressing a thought.69

Can every sentence be said to express a thought? Frege appears to suggest that not

every sentence should be seen as expressing a thought. He identifies imperative

sentences, sentences expressing desires or requests and sentences of exclamation as not

expressing a thought. Interrogative sentences, on the other hand, come with certain

qualifications. These types of sentences take the form of word-question. In a word-

question, he observes, we utter an incomplete sentence which only obtains a true sense

through the completion for which we ask. Sentence-questions are a different matter. We

expect to hear “yes” or “no”. The answer “yes” means the same as an indicative sentence,

for in it the thought that was already completely contained in the interrogative sentence is

laid down as true. So a sentence-question can be formed from every indicative sentence.

An exclamation cannot be regarded as a communication on this account since no

corresponding sentence-question can be formed.70

Frege explains that ‘an interrogative sentence and an indicative one contain the

same thought; but the indicative contains something else as well, namely, the assertion.

The interrogative sentence contains something more too, namely a request. Therefore two

things must be distinguished in an indicative sentence: the content, which it has in

69 Ibid at 292. 70 Ibid.

common with the corresponding sentence-question, and the assertion. The former is the

thought, or at least contains the thought. So it is possible to express the thought without

laying it down as true. Both are so joined in an indicative sentence that it is easy to

overlook their separability. Consequently, we may distinguish:

(1) the apprehension of a thought – thinking

(2) the recognition of the truth of a thought – judgment and

(3) the manifestation of this judgment – assertion.’71

He explains further that we perform the first act when we form a sentence-question. An advance

in science usually takes place in this way, first a thought is apprehended, such as can perhaps be

expressed in a sentence-question, and after appropriate investigations, this thought is finally

recognised to be true.72

With regards to the second, we declare the recognition of truth in the form of an

indicative sentence. We do not have to use the word “true” for this. And even when we do use it,

the real assertive force lies, not in it, but in the form of the indicative sentence and where this

loses its assertive force the word “true” cannot put it back again. This happens when we do not

speak seriously.73

The manifestation of judgment as assertion does not lend to easy distinction. Frege notes

in this regard that language can be misleading. “Much of language serves the purpose of aiding

the hearer’s understanding, for instance the stressing of part of a sentence by accentuation or

71 Ibid. 72 Ibid at 294. 73 ‘As stage thunder is only apparent thunder and a stage fight only an apparent fight, so stage assertion is only

apparent assertion. It is only acting, only fancy. On his part the actor asserts nothing, nor does he lie, even if he says

something of whose falsehood he is convinced.’ See Ibid.

word-order”. But it can also serve as the source of confusion.74

Frege considers the word “still”

in the sentence “Alfred has still not come” and points out that what is really said is that “Alfred

has not come” and, “at the same time, hints that his arrival is expected, but it is only hinted.”75

He argues that ‘it cannot be said that, where Alfred’s arrival is not expected, the sense of the

sentence is false. Such suggestions in speech make no difference to the thought.’76

Frege’s explanatory model goes further to map out a distinction between the realm of

thoughts and ideas. In this regard he writes that ‘even an unphilosophical person soon finds it

necessary to recognise an inner world distinct from the outer world, a world of sense-

impressions, of creations of his imagination, of sensations of feelings and moods, a world of

inclinations, wishes and decisions. For brevity I want to collect all these, with the exception of

decisions, under the word “idea”.’77

He identifies the following characteristics as belonging to

ideas:

(i) Ideas cannot be seen or touched, cannot be smelled, or tasted, or heard.78

(ii) Ideas are had. One has sensations, feelings, moods, inclinations, wishes. An idea

which someone has belongs to the content of his consciousness.79

(iii) Ideas need a bearer. Things of the outer world are however independent.80

74 Gottlob Frege, fn 60 at 295 75 Ibid. 76 This is qualified to the extent that the distinctions do not touch what is essential. What is essential will depend on

one’s purpose. Thus the contents of a sentence often go beyond the thoughts expressed by it. But the opposite often

happens too, that the mere wording, which can be grasped by writing does not suffice for the expression of the

thought. See Gottlob Frege, fn 60 at 296. 77 Ibid at 299. 78 He illustrates as follows: ‘If I go for a walk with a companion and I see a green field, I have a visual impression of

the green as well. I have it but I do not see it.’ See Ibid. 79 He illustrates as follows: ‘The field and the frogs in it, the sun which shines on them are there no matter whether I

look at them or not, but the sense-impression I have of green exists only because of me, I am its bearer. It seems

absurd to suggest that a pain, a mood, a wish can rove around the world without a bearer, independently. An

experience is impossible without an experient. The inner world presupposes the person whose inner world it is.’ See

Ibid.

(iv) Every idea has only one bearer; no two men have the same idea.81

Following from the above characterization of idea, Frege questions whether a thought is

an idea. To this he responds that if the thought I express in the Pythagorean theorem can be

recognised by others just as much as by me then it does not belong to the content of my

consciousness, I am not its bearer; yet I can nevertheless, recognise it to be true. However, if it

is not the same thought at all which is taken to be the content of the Pythagorean theorem by me

and another person, one should not really say “the Pythagorean theorem” but “my Pythagorean

theorem”, “his Pythagorean theorem” and these would be different; for the sense belongs

necessarily to the sentence. Then my thought can be the content of my consciousness and his

thought the content of his. Could it then be said that the sense of my Pythagorean theorem is true

while that of his is false? If so, then the words “true” and “false”, as I understand them, would be

applicable only in the sphere of my consciousness, if they were not supposed to be concerned

with something of which I was not the bearer, but were somehow appointed to characterise the

content of my consciousness. It means then that truth would be restricted to the content of my

consciousness and it would remain doubtful whether anything at all comparable occurred in the

consciousness of others.82

80 He illustrates as follows: ‘My companion and I are convinced that we both see the same field; but each of us has a

particular sense-impression of green. I notice a strawberry among the green strawberry leaves. My companion does

not notice it, he is colour-blind. The colour impression, which he receives from the strawberry, is not noticeably

different from the one he receives from the leaf.’ See Gottlob Frege, fn 60 at 299. In the final analysis, the

differences in our colour-impressions are immaterial to our idea of the object of our imagination. 81 He illustrates as follows: ‘For otherwise it would exist independently of this person and independently of that one.

Is that lime-tree my idea? By using the expression “that lime-tree” in this question I have really already anticipated

the answer, for with this expression I want to refer to what I see and to what other people can also look at and

touch.’ See Gottlob Frege, fn 60 at 300. 82 Ibid at 301. ‘If every thought requires a bearer,’ Frege notes, ‘to the contents of whose consciousness it belongs,

then it would be a thought of this bearer only and there would be science common to many, on which many could

work. Each person would have his own science, namely a whole of thought whose bearer I am and another person

has his. Each of us would be occupied with the content of our consciousness. No contradiction between the two

Since such a claim would be absurd, Frege comes to the conclusion that thoughts are

neither things of the outer world nor ideas. They belong in a third realm which corresponds in

part to ideas in that it cannot be perceived by the senses, but possessed of things in that it needs

no bearer to the contents of whose consciousness they belong. Thus the thought, for example,

which was expressed in the Pythagorean theorem, is timelessly true, true independently of

whether anyone takes it to be true. It needs no bearer. It is like a planet which, already before

anyone has seen it, has been in interaction with other planets.83

Frege points out further that the apprehension of a thought presupposes someone who

apprehends it, who thinks. He is the bearer of the thinking but not the thought. Although the

thought does not belong to the contents of the thinker’s consciousness yet something in his

consciousness must be aimed at the thought. But this should not be confused with the thought

itself. The thought neither belongs to my inner world as an idea nor yet to the outer world of

material, perceptible things.84

IV Judicial Reasoning as an Elevated Thought Process

Adopting Frege’s construct of the thought process, we question whether it can serve as an

explanatory framework of judicial reasoning. Revisiting the postulations of the scholarship on

judicial reasoning, we notice that despite their divergent claims, a common ground is the

understanding that in judicial reasoning, the ultimate objective of the judge is to do justice.

sciences would then be possible and it would rally be idle to dispute about truth, as idle, indeed almost ludicrous as

it would be for two people to dispute whether a hundred-mark note is genuine, where each meant the one he himself

had in his pocket and understood the word “genuine” in his own particular sense. If someone takes thoughts to be

ideas, what he then recognises to be true is, on his view, the content of his consciousness and does not properly

concern other people at all. If he were to hear from another the opinion that a thought is not an idea he could not

dispute it, for, indeed, it would not now concern him. See Gottlob Frege, fn 60 at 301-2 83 See Gottlob Frege, fn 60 at 302. 84 Ibid at 308.

The idea of justice is not a tangible material that can be perceived by any of the human

senses. Neither is it an idea that exists only in the consciousness of the bearer.85

Like Frege’s

characterization of thought, it is a universal timeless notion needing no bearer to exist. As such,

it is instantly cognisable by anyone and everyone upon its manifestation.86

Because of this

timeless and universal attribute of justice, people can talk about the presence or absence of

justice as if it were an animate object.

Once we accept justice as a universal concept, although lacking materiality and existing

independent of any human bearer, the question becomes how justice can be said to be done by a

judge. Since it is insufficient, to claim that justice has been done merely because a judge has

declared it so. It means then that the parameters for doing justice lie outside the judge. Herein

lies the method of the thought process of the judge in judicial reasoning.

Whereas in Frege’s conceptualisation, the focus was on truthful assertions indicative of

thought, in judicial reasoning, the focus of the judge goes beyond just establishing the truth or

falsehood of his thought. There is a method to be followed in judicial reasoning with the ultimate

objective of doing justice. Ignoring or side-stepping this method would be detrimental to the

final output of the judicial reasoning process.

Furthermore, this method to judicial reasoning regiments the thinking process of the

judge. The judge is not allowed to think in vacuum. He thinks on the basis of the material placed

before him. Even if he is aware of some other fact which ought to materially affect the final

85 Otherwise it will be possible to talk about the justice of “Judge A” and the “Judge B” or “party A” and “party B”.

It will be absurd to conceive of justice in terms of what a judge or party says it is. If that were the case, then every

judicial decision would be a final statement of the justice of that case once a judge pronounces it to be so and there

would be no need for a system of appeal to review the decision of the court to see if it was rightly decided. On

another view, a judge’s declaration of justice would out rightly be rejected by the parties since it is not their

conception of justice. The potentials for disagreements are simply endless. 86 There might be arguments here and there about its content, but such arguments are only as to the degree of its

manifestation.

outcome of his thought process, so long as that material has not been placed before him

following the due process of law, it cannot constitute the basis of his thought. Judicial reasoning

in this context is circumscribed by law and not by the whims of the judge. Perelman writes in

this regard that:

The operative part of the judgment, the very ruling, is preceded by the

grounds which constitute the reasoning on which the ruling is based.

Judicial reasoning thus constitutes a model of practical reasoning, aimed at

justifying a decision, a choice or a claim, and establishing that they are

neither arbitrary nor unjust: the judicial ruling is justified if the conclusion

following its reason conforms to the law.87

To the extent that judicial reasoning conforms to this model, it transcends the mere

thought process and embodies an elevated thought process. Whether the judge adopts the

epistemic approach of formalism or the personalistic touch of intuitionism or determinism, the

expectation placed on his thought process does not vary. He must justify it on the basis of the

correspondence of the law with the facts that have been placed before him. Reasoning in this

manner, elevates the thought process in judicial reasoning beyond the realm contemplated in

Frege’s postulation.

V Conclusion

Judicial reasoning continues to engage the attention of legal scholars because of its

significance to the legal process. Examining the thought process of judges in judicial reasoning,

we are forced to come to terms with the fact that it embodies a method of its own distinct from

the thought process outside the realm of judicial decision making. Frege’s construct of the

87

See Chaim Perelman, fn 1.

thought process of man provides us with an explanatory framework shedding light on how

human thought exists. We see that the thought process is a timeless notion exiting in a realm

distinct from the material world of tangible things or the individual world of ideas. It is a realm

containing shared realities investing man with cognitive abilities and potentials to innovate and

reach out to his world. The thought process in judicial reasoning elevates beyond this realm by

virtue of its pursuit of the higher ideal of justice through a regimented method orchestrated by

law.