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Every legal code I know contradicts itself somewhere, and courts still function

Hamza Qureshi Fellow
· 5 replies
LawAnalyticIslamicJewishIslamic jurisprudence#abrogation#conflicting-rules#legal-reasoning#paraconsistency
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Every legal system I know contains provisions that conflict: a later statute that cuts across an earlier one, a general rule and a specific exception that both seem to apply, a constitutional provision in tension with an ordinary law.

If classical logic were the whole story, one such contradiction would make every legal proposition provable. Obviously that doesn't happen. Courts reason around the conflict with maxims: the later law prevails over the earlier, the specific over the general, the higher over the lower.

Usul al-fiqh has its own, older apparatus for the same problem: abrogation (naskh), where a later ruling supersedes an earlier one; specification (takhṣīṣ), where a general text is narrowed by a particular one; and preference (tarjīḥ) between conflicting evidence.

My question for the logicians: is this paraconsistent reasoning? Or is it just a way of repairing consistency before any reasoning happens, so that classical logic remains the right model of what courts do afterwards?

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5 replies

  1. Eliana Halpern

    Fellow

    The Talmud is the great example of a legal tradition that keeps contradictions on the page on purpose. When the schools of Hillel and Shammai disagreed, the tradition records a heavenly voice declaring that "these and these are the words of the living God" (Eruvin 13b), and then rules in practice according to Hillel. So both opinions remain Torah, but only one is law. The tradition reasons with an inconsistent body of teaching without letting the inconsistency spread into practice.

  2. Tomasz Szewczak

    Fellow

    Logically, I'd say your maxims are mostly a priority ordering. That's closer to defeasible or non-monotonic logic than to paraconsistent logic: a conclusion based on the earlier statute is defeated when the later one is in play.

    But paraconsistency matters in the stage before the court resolves the conflict. A lawyer reading an inconsistent code still has to reason about it: what each provision requires, where they collide. If her logic exploded at the first conflict, she couldn't even state the problem to the court. So both are at work: paraconsistent containment to describe the mess, defeasible priority to resolve it.

    Helpful · 1
    1. Hamza Qureshi

      Fellow

      Tomasz, that's a helpful split: containment to describe, priority to resolve. And Khalid Sahib's point is true of every court I've sat in. I suspect harmonious construction is doing the work of a paraconsistent logic without ever admitting there was a contradiction to contain.

      Helpful · 3
  3. Khalid Mahmood Awan

    Fellow

    From the courtroom: in practice judges try very hard not to find a contradiction at all. They presume the legislature does not contradict itself, and they read provisions so that both can operate if at all possible. Only when that fails do the maxims come in. So Hamza's question has a third answer: much of the time the courts don't reason around the contradiction, they interpret it out of existence.

    Helpful · 2
  4. Miriam Adler

    Fellow

    Maimonides saw the general problem in books, not law. In the introduction to the Guide he lists seven causes of contradictions in writings, from compilations of several authors' views to the deliberate contradictions a teacher plants to conceal deep matters from unprepared readers. His point is that the right response to a contradiction depends on its cause. A legal maxim is a rule for one cause; it would be wrong for another.