Chapter 2
Rationality
Introduction
Being Rational
Being Irrational
[L]aw is dedicated to the rational solution of social conflicts.
20
Introduction
The heart has its reasons that reason knows nothing of.
21
There are several good reasons for finding out what it means to think rationally
in any sphere of activity including law. First, like any philosophical enterprise,
it is worth doing for its own sake. This is why the mind is the favoured
plaything of any child of the Enlightenment.
Second, it is a matter of values. Rationality is highly regarded by any civilised
society.
22
Homo sapiens, the thinking human, is distinguished from other
animals in the ability to behave rationally. Therefore in public life, including
fields such as law
23
and law reform,
24
humans aspire to rational decision-
making. Consequently,
society judges decisions of legislatures and courts
according to how rational they are.
25
One of the clearest indications of this is the phraseology that lawyers use to
describe a judgment of a court. They refer to the core part of it as the
“reasons” for the decision. This reflects a desire that a decision is “based on
reason”, and that can only be seen if the decision maker states their reasons.
26
It is regarded as an elementary principle of fairness that judges and other
adjudicative decision makers do this.
As it happens, there are other good advantages for the formal display of
rationality in publishing reasons for decisions. These include the fact that a
___________________
20
Fleming (1977) p v
21
Blaise Pascal Pensees (1670) iv 277
22
See, for example, Bromberger (1986) and Suchman (1997).
23
See Lloyd (1964), Bray (1979), Parker (1993).
24
See Sawer (1970), Woodman (1975).
25
See Suchman (1997), Rubin (1991), Schaffer (2001).
26
Mobasa v Nikic (1987) 47 NTR 48 at 50
 |
 |
 |