Is Law Discovered or Made by Judges? A Kantian Analysis
Is Law Discovered or Made by Judges? A Kantian Analysis
Kant wrote in his Critique of Pure Reason:
“In the earliest times of which history affords us any record, mathematics had already entered on the sure course of science, among that wonderful nation, the Greeks. Still it is not to be supposed that it was as easy for this science to strike into, or rather to construct for itself, that royal road, as it was for logic, in which reason has only to deal with itself. On the contrary, I believe that it must have remained long — chiefly among the Egyptians — in the stage of blind groping after its true aims and destination, and that it was revolutionized by the happy idea of one man, who struck out and determined for all time the path which this science must follow, and which admits of an indefinite advancement. The history of this intellectual revolution — much more important in its results than the discovery of the passage round the celebrated Cape of Good Hope — and of its author, has not been preserved. But Diogenes Laertius, in naming the supposed discoverer of some of the simplest elements of geometrical demonstration — elements which, according to the ordinary opinion, do not even require to be proved — makes it apparent that the change introduced by the first indication of this new path, must have seemed of the utmost importance to the mathematicians of that age, and it has thus been secured against the chance of oblivion. A new light must have flashed on the mind of the first man (Thales, or whatever may have been his name) who demonstrated the properties of the isosceles triangle. For he found that it was not sufficient to meditate on the figure, as it lay before his eyes, or the conception of it, as it existed in his mind, and thus endeavour to get at the knowledge of its properties, but that it was necessary to produce these properties, as it were, by a positive à priori construction; and that, in order to arrive with certainty at à priori cognition, he must not attribute to the object any other properties than those which necessarily followed from that which he had himself, in accordance with his conception, placed in the object.”[1]
Kant says that it “was necessary to produce these properties.” He further goes on, “he must not attribute to the object any other properties than those which necessarily followed from that which he had himself, in accordance with his conception, placed in the object.” Kant is saying we can’t contribute properties in an object other than those that a person places in it. Those objects do not presuppose our construction of them. This is pivotal for Kant.
What does it mean to not presuppose the construction of an object? He says this was a bigger revolution than the “intellectual revolution — much more important in its results than the discovery of the passage round the celebrated Cape of Good Hope” — the opening of globalisation and trade. This is a big claim Kant is making. He does not shy away from this claim.
What is he characterizing as intellectually revolutionary? It’s this concept of triangles and geometry. This concept is not a tautology. You can’t put something into something other than that was not in it already. The Propositions in Euclid’s Elements lead up to the Pythagorean theorem. But the Propositions up to the Pythagorean theorem do not imply the Pythagorean theorem itself.[2]
What implications does Kant’s assertion on a priori cognition?
The question whether or not a law is discovered or made is of salient importance.[3] Consider the prospect of having a retroactive law that implicates someone into having an obligation that they didn’t know about without ever changing the language of a statute or regulation or any rule whatsoever.[4] The judge just found that implicitly or arguably discovered implicitly that the law exists within the law that was already written. Now granted there are many retroactive rules in place to prevent such rulings from occurring in the United States but the question of whether laws discovered or not is of great importance in determining questions of what the law historically was.
Arguably based off the quote examined above by Kant, there is no such thing as an a priori idea that already existed in isosceles triangle. Further examining the statement that he is making it a philosophical perspective is that nothing can be imbued with a quality unless we imbue it with that quality ourselves.
Referring back to the concept of the isosceles triangle which may seem that it exists in nature absent any human interaction, would indicate that mathematics is a whole existence nature. This is a philosophical question arguably going back to Greek mathematics prior to Thales.[5] However who brought this type of question up first is not certain of course.
Does mathematics exist independent of human existence and cognition? Or does it exist nearly as an affectation of human intelligence? For example we can certainly use engineering and other such science is based in mathematics to develop architecture and buildings that actually can’t stand up for a prolonged periods of time. One needs look no further than the pyramids or the Acropolis from ancient times.
But the question is not whether or not these are useful sciences or methods for manipulating the world around us, but rather whether they inherently exist absent human cognition. Is it fair to say that mathematics exist absent humans?[6]
For example we could use experience from the outside world to try to determine whether or not certain mathematical principles exist.[7] We could readily demonstrate that using the concepts of a right angle we can construct buildings. Perhaps we could even go so far to indicate that certain shapes exist in nature such as chemical compounds or even the structure of an atom or perhaps even that circles exist in nature. Often there will be counter arguments to this premise that could indicate they are inherently incorrect.
But referring to the critique of pure reason and the concept of isosceles triangle’s, it seems that mathematics cannot exist independent of humans, because it is the human mind that presupposes and infuse into the concept of an isosceles triangle what it is. The isosceles triangle does not exist in nature by itself. Rather it is a conception of the human mind. This could arguably be said for other mathematical and scientific principles as well. Given this premise that has been argued from Kant’s examination of a priority mathematics, what does this imply for law? Specifically what does this imply about whether or not lol is discovered or made?
From this perspective, lol is never discovered and never made, but rather it exists in the human mind and these concepts you don’t exist independent of human cognition. This can be similar to 20th century theories of language games.
Suppose the system is so complex that it can be defined as random. But also suppose that a system is defined as chaotic. Assuming that chaos and randomness or the exact same thing for a sequence of numbers, then any increasing levels of computation or functions could explain the random pattern.
Thus depending on how you answer the question, any level of complex argument or mathematical formulas that ultimately describe the functions of a mathematical sequence of random or create a lot of numbers. By the same analysis, any level of philosophical or cognitive principles can be explained given a basic or complex argument. In this case the body of legal principles can be explained in a complex way.
[1] The Critique of Pure Reason By Immanuel Kant Translated by J. M. D. Meiklejohn, https://www.gutenberg.org/files/4280/4280-h/4280-h.htm
[2] Compare this with the Barnum Effect — how people rely on horoscope readings as associations of ideas that already exist. The person inheres value to the written horoscope through previous analogies and associations to make it seem real.
[3] Chafee, Zechariah. “Do judges make or discover law?.” Proceedings of the American Philosophical Society 91, no. 5 (1947): 405–420. Harvard
[4] See generally: Munzer, Stephen R. “Retroactive law.” The Journal of Legal Studies 6, no. 2 (1977): 373–397.
Straw, Jack (2005–02–08). “Select Committee on European Scrutiny Minutes of Evidence: Examination of Witnesses (Questions 229–239): Rt hon Jack Straw MP and Mr David Frost”. House of Commons Publications. Retrieved 2008–01–09. “I think your Committee will be familiar with what Lord Denning, then Master of the Rolls, said in McCarthy v Smith: ‘If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision of it or with the intention of acting inconsistently with it — it says so in express terms — I should have thought it would be the duty of our courts to follow the statute in our Parliament.’ That much is clear. Other consequences would follow in those circumstances, which arise from our signature on the Vienna Convention on the Law of Treaty, Article 27, which says that you have to respect the international obligations into which you have entered.” Cf. Lord Denning in Macarthys Ltd v Smith [1979] ICR 785 at p. 789, quoted in Steiner, Josephine; Woods, Lorna; Twigg-Flesner, Christian (2006). “Section 4.4.2: Effect of the European Communities Act 1972, s.2(1) and (4)”. EU Law (9th ed.). Oxford, New York: Oxford University Press. p. 79. ISBN 978–0–19–927959–3. If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it — and says so in express terms — then … it would be the duty of our courts to follow the statute of our Parliament.
[5] For an excellent discussion of the history of Greek mathematics see Heath, Thomas Little. A history of Greek mathematics. Vol. 1. Clarendon, 1921.
[6] For a in depth discussion of this question, see Resnik, Michael. “Scientific vs. mathematical realism: The indispensability argument.” Philosophia Mathematica 3, no. 2 (1995): 166–174. See also Tieszen, Richard. “Mathematical realism and Gödel’s incompleteness theorems.” Philosophia Mathematica 2, no. 3 (1994): 177–201.
[7] Parsons, Charles. “Platonism and mathematical intuition in Kurt Gödel’s thought.” Bulletin of Symbolic Logic 1, no. 1 (1995): 44–74.
© Charles Edward Andrew Lincoln IV
