I picked up Steven Pinker‘s book How the Mind Works this morning. On page 13, I encountered this:
A bachelor, of course, is simply an adult human male who has never been married. But now imagine that a friend asks you to invite some bachelors to her party. What would happen if you used the definition to decide which of the following people to invite?
Arthur has been living happily with Alice for the last five years. They have a two-year-old daughter and have never officially married.
Bruce was going to be drafted, so he arranged with his friend Barbara to have a justice of the peace marry them so he would be exempt. They have never lived together. He dates a number of women, and plans to have the marriage annulled as soon as he finds someone he wants to marry.
Charlie is 17 years old. He lives at home with his parents and is in high school.
David is 17 years old. He left home at 13, started a small business, and is now a successful young entrepreneur leading a playboy’s lifestyle in his penthouse apartment.
Eli and Edgar are homosexual lovers who have been living together for many years.
Faisal is allowed by the law of his native Abu Dhabi to have three wives. He currently has two and is interested in meeting another potential fiancée.
Father Gregory is the bishop of the Catholic cathedral at Groton upon Thames.
The list, which comes from the computer scientist Terry Winograd, shows that the straightforward definition of “bachelor” does not capture our intuitions about who fits the category.
Knowing who is a bachelor is just common sense, but there’s nothing common about common sense. Somehow it must find its way into a human . . . brain. And common sense is not simply an almanac about life that can be dictated by a teacher or downloaded like an enormous database. No database could list all the facts we tacitly know, and no one ever taught them to us.
The context of that passage is Pinker’s discussion of how extraordinary is the human mind, but it reminded me immediately of one of the fundamental problems of lawyering. And it’s a problem not just in how we go about our day-to-day practice—Does this recurrent benefit count as “income” for the purpose of the definition in that statute? Are those actions “attempted murder” under the penal code?—but a problem in how lawyers are often perceived: as disingenuous sophists and destroyers of meaning. The problem is relating an abstract definition, often called a rule, to a specific set of facts, in a process called application.
Law students are familiar with application as the A in the common analytical pattern of IRAC: Issue, Rule, Application, Conclusion. They are also familiar with the idea that there is no “correct” answer to any legal question, at least in the sense that there is often no application of a rule that is so blindingly clear and obvious as to be unavoidable. No matter the conclusion, one can almost always make a plausible argument for its opposite.
We live in a world where that is possible because, as Pinker demonstrates, definitions or rules (e.g., a bachelor is an adult human male who has never been married) almost never have the scope they need to be easily and unambiguously applied to all possible situations. I would go so far as to say that definitions or rules are useful precisely because they do not encompass every possibility. Trying to define words and concepts coextensively with their actual use in the wild would make discrete words and concepts almost useless in many instances because, as lawyers familiar with the problems of statutory construction understand, you will never discover all the problems with your definition—until it becomes completely obsolete and is replaced by another.
Rules and definitions and the meanings of words are more like clouds that drift across a continuum possibilities, shadowing out a useful territory only temporarily. They provide one of the tools we use to economize decision-making. In the example above, from Pinker’s book and Winograd’s list, no one would bother to define all the exceptions to the standard definition of a bachelor in making that list of invitees. And few would take the time to rationalize from what they know of practice, through “common sense,” to the outcome of who is invited to the party. The real meaning of “bachelor” is a matter of practice; the word and its definition are just a shorthand that will never include the whole realm of possibilities.
In law, however, we often pretend, for the sake of predictability, that words and their definitions are the be-all, end-all arbiters of meaning. Lawyers find all the facets of ambiguity in the language spilled from the frenzied pens of power-grabbing legislators and judges employ “canons of construction,” like the useful fiction of “the plain meaning of the statute,” to reduce the ambiguity. (Then, when they come down on the side a particular legislator does not approve, they are reviled as “activist” judges. Some people would “solve” this problem by insisting that judges facing genuine ambiguity—and how they would know that is hard to say—should simply decline to make a decision and send the disputed language back to the legislature. But who decides when the legislators have succeeded?)
There is probably no way to prevent people from seeing lawyers as insufferable sophists because most people are not interested in recognizing that the world is a cloudy, slippery, indistinct place—especially where humans have built cultures and social forms and morals and rules—and most of what we think we know is only shorthand for all the contradictory things we actually do.