Striving for consistency—for consistency, that is, properly understood—must characterize legal reasoning in order for the reasoning to deserve to be called "legal." It may conceivably be "good" or "moral" for identically situated persons to be treated differently by institutions with power, but doing so can hardly be called "legal." Very careful attention must be given, of course, to what is meant by "identically situated," as no two different persons can be 100% identically situated. Their names, for instance, are different. By identical, we must mean no relevant distinction, or no distinction that serves a purpose that we can articulate and defend. Of course, people may have very different concepts of what is a relevant distinction and what is not, based on different conceptions of what is good, or valuable, or desirable. Evaluation of what distinctions are relevant is integral to the legal enterprise. The better it is done, the better law will serve the purposes that law is intended to serve.
It is impossible to evaluate distinctions if consistency is not demanded. An argument that is inconsistent (in the sense that there is no defensible distinction justifying different treatment to similar situations) is therefore legally indefensible. For this reason, logic is bound up in the law. Sound legal reasoning must be logical legal reasoning. Otherwise the enterprise is flawed, if not doomed. Illogic is accordingly a bane of the law. It is thus with open arms that scholars should welcome Professors Rodes and Pospesel's insightful treatise on symbolic logic for legal analysis. Law cannot be "too" logical.
If seeming logic leads to intuitively unsatisfying results, a troublesome answer is to eschew logic. A preferable answer is to explain the flaw in the logic. In their chapter on "Intensional Contexts," Rodes and Pospesel alert us to a logical flaw that, once explained, may help us reject legal results that give logic a bad name in the law. They use symbolic logic to do this.
However, some bad law that seems to result from logical flaws may be more accurately attributed to differing value judgments or a differing weighing of public interests. If a legal result is criticized purely on the grounds that the logic fails, when in fact the logic is defensible but the policy is not, then it is just as hard to evaluate the criticism as in the reverse situation where there is a hidden flaw of logic. I am led to this observation from the seeming applicability of Rodes and Pospesel's treatment of intensional contexts to a legal rule that I have recently been devoting some attention. That rule is the canon, or maxim, that statutes will be construed, if possible, to conform to the international law obligations of the United States.
What follows is a description of the rule, along with examples of its application, and a traditional legal justification of the rule on policy grounds. This is followed by my criticism of application of the rule in a particular case, United States v. Palestine Liberation Organization, where the identified policies do not warrant its application. Next, I examine whether that criticism itself is subject to the criticism that a logical argument, along the lines of Rodes and Pospesel's, would have done just as well. In the end I reject this. In doing so, I evaluate whether perhaps some of the challenging examples used by Rodes and Pospesel are more easily explained and resolved using traditional legal analysis than through symbolic propositional analysis.
John M. Rogers, "Intensional Contexts" and the Rule that Statutes should be Interpreted as Consistent with International Law, 73 Notre Dame L. Rev. 637 (1998).