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MECHANICAL JURISPRUDENCE

Mechanical jurisprudence (Pound, 1908) is the name of a theory that explains judicial reasoning and legal validity (i.e., how it is that a judicial holding is legally binding) by reference to deductive logic. The theory tells us that a judge's decision, for instance, that Erstwhile is guilty of fraud, is the conclusion of a syllogism. The major premise of the syllogism is an element of material law, for example, a statute or the ratio decidendi of a precedent case. The minor premise states the facts of the case. A judge's ruling is legally valid because it is the conclusion logically entailed by these premises of law and fact. It is, then, the determination of the law (and logic); the judge is merely the mouthpiece. There is, then, a straightforward sense in which the theory articulates the distinction, noted earlier, between the rule of law and the rule of individual men.

Sir William Blackstone provides a classic statement of this way of think- ing in his Commentaries on the Laws of England:

The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, and which stand thus: against him, who hath rode over my corn, I may recover damages by law: but A hath rode over my corn; therefore I shall recover damages against A. If the major pro- position be denied, this is a demurrer in law: if the minor, it is then an issue of fact: but if both be confessed (or determined) to be right, the conclusion or judgment of the court cannot but follow. Which judgment or conclusion depends not therefore on the arbi- trary caprice of the judge, but on the settled and invariable principles of justice. (1897, vol. 3, p. 396)

The conclusion of a syllogism that has true premises and is deductively valid is logically guaranteed to be true. Consider this syllogism:

All human beings are mortal. Queen Elizabeth is a human being.

Therefore Queen Elizabeth is mortal. The conclusion here is and must be true, if the premises are true, which of course they are. The critical point is that the conclusion is contained in the premises; the inference does not have us going beyond what the premises tell us, which is why its truth is thus guaranteed by their truth. Thus, it appears, as Montesquieu says, that judges are 'only the mouth that pronounces the words of the law, inanimate beings who can moderate neither its force nor its rigor' (Montesquieu, 1989, p. 163). No discretion, indeed, no judgment, is called for here; thus, proponents would say, abuse is precluded and justice assured. So, again, mechanical jurisprudence is an appealing theory, because, among other things, it makes it easy to explain the rule of law idea in the context of adjudication. It's like the siren song, however, and we must do our best not to be seduced by it.

CODES, AGAIN

I promised to return to a point made earlier in my brief remarks about the cheating scandal at Harvard. You'll recall that 125 students were suspected of academic dishonesty. Some of the cases that were investigated involved allegations of unauthorized collaboration, others involved allegations of plagiarism. I observed earlier that what is being talked about most in the Harvard case is the standard fare with a cheating scandal: how widespread the cheating problem is, the need for tougher sanctions, honor codes, and who or what is to blame.

For many people, including many faculty, the appropriate response to cheating is straightforward: more policing and harsher sanctions. Trouble is, on campus, as in society, there is quite a lot of evidence that such an approach falls short of the mark. On the basis of a major study in Chicago, Illinois, which is the subject of his book, Why People Obey the Law, Tom Tyler recommends a normative perspective as a supplement to what he calls the instrumental approach of increased policing and harsher sanctions. What he has in mind here is an understanding of 'what behavior is appro- priate.' In this case, behavior is governed not by calculations of expected reward or punishment, but by 'internalized obligations' that is, obligations for which [an individual] has taken personal responsibility' (Tyler, 1990, p. 24). What Tyler recommends vis-a`-vis the law, is exportable: we can make good use of it in our efforts to promote a culture of integrity and commitment on campus that does not rely on aggressive policing to achieve compliance with the normative expectations of the academic enterprise.


 
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