In two recent papers, Christian List and Philip Pettit have argued that there is a problem in the aggregation of reasoned judgements that is akin to the aggregation of the preference problem in social choice theory. 1 Indeed, List and Pettit prove a new general impossibility theorem for the aggregation of judgements, and provide a propositional interpretation of the social choice problem that suggests it is a special case of their impossibility result. 2 Specifically, they show that no judgement aggregation (...) function for a group is possible if the group seeks to satisfy certain `minimal conditions' designed to ensure that the function is both responsive to the individually rational views of its members and collectively rational in the set of judgements it holds. In this article, I resist the List and Pettit claim that there is the same propensity for collective irrationality or incoherence in the aggregation of reasoned judgements as there is in the aggregation of preference. I argue that reason, because it has a logical structure that is lacking in mere preference, has the effect of giving priority to some aggregations over others, a priority that is not permitted by one of the conditions imposed by List and Pettit. This avoids the incoherence that would otherwise exist if these different aggregations, not consistent with one another, were to compete at the same level of priority. The priority of some aggregations is particularly apparent, I shall argue, if one views the aggregation of judgements through the lens of common law decision-making. Key Words: social choice • judgement • Condorcet jury theorem • collective rationality • public reason • doctrinal paradox • discursive dilemma. (shrink)

Legal decision-making emphasizes, in a very self-conscious way, the justificatory significance of reasons. This paper argues that the obligation to provide reasons for choices, which must be articulated and structured around a set of generally shared and publicly comprehensible categories of thought, can serve to make the space of possible choices ‘concept sensitive’ in a very useful way. In particular, concept sensitivity has the effect of restricting certain movements within the choice space so that some of the systematic difficulties in (...) achieving an equilibrium in social choice which arise out of an excess of rational doing are avoided. The resulting equilibrium is path dependent. But because it is dependent on a choice path which ‘makes sense’ (or is ordered by thought precisely because it is concept sensitive), it is not the sort of arbitary path-dependent social choice which originally concerned Kenneth Arrow. This paper illustrates these points with examples from criminal law procedure, contract law and constitutional law. (shrink)

Defeasible rules are said to allow for the following two-staged sequence, viz., that p → q and yet p & r → not-q. This is puzzling because in the logic of conditionals the sufficiency of p for q cannot normally be undermined if one adds to the antecedent a further proposition r. Critics argue that the better approach to comprehending defeasibility is explicitly to represent the limiting factor r in a single-stage articulation of the rule, viz., as p & not-r (...) → q. This is a more complete statement of the rule; where the old rule announced, confidently and without qualification, that in circumstances or class of cases p consequence q follows, the new rule admits from the outset that q only follows if we add the qualifier that limits the antecedent circumstances to the smaller class of cases p & not-r. This is not only more complete, the critics argue, it is also a more accurate or truthful statement of the rule. The rule p → q, articulated at the first stage of the defeasible process, is only a pretender encountered along the way to this more complete truth. In this paper I show how, and why, contrary to the critics, the process of private law adjudication supports the multi-staged structure and representation of defeasible legal rules. What matters when one party makes a claim against another party is not so much that the claim is true (or even that it is advanced as a legitimate claim under the rule that is most likely to be true), but rather that the claim is of the sort that the party can justifiably say is true. The latter, at least, is what carries the plaintiff past the initial burden of proof, and what calls for the defendant to reply if the plaintiff is not to carry the day. I illustrate the argument by way of the court’s reluctance in a tort case to entertain a purely statistical basis for a plaintiff’s claim that the defendant has caused her injury. Rather, the court will insist on direct evidence that appears to arise out of the particular circumstances of the case as the plaintiff alleges them to be, and even if, as a purely statistical matter, the latter sort of claim is less likely to be true than the claim grounded in pure statistical likelihood. I relate this argument for defeasible rules (and against rules that are more truthful) to some important arguments offered by the philosopher Stephen Darwall in his recent book The Second Person Viewpoint. Private law’s defeasible rules, I argue, capture the special respect (and interpersonal accountability) that attaches only to rights arising out of “second personal” claiming (and counterclaiming) and which are not realizable merely as a matter of “third personal” (moral) truth. (shrink)