INTRODUCTION TO RIGOR

We are deluged by theories, speculations, claims, and mere possibilities.  The most tenuous links, the thinnest bands, tie contentions together.  Entire publications are built on this unsteady foundation.  Americans, like all literate peoples, are surrounded by words and the ideas they convey.  Our responsibility, however, is to consume, and produce, only the best from the fare before us.  So many ideas, theories, and concepts, and from all of these only some can command our scarce time.  The modern challenge for most isn't mere reading or writing; it's distinguishing the good from the bad.

The antidote for weak theories, flimsy contentions, and false claims is rigor.  Rigor is the use of demanding and exacting standards.  For the law, it means command of fact, knowledge of law, and the application of rational, logical principles of reasoning. 

A few, fundamental standards comprise rigor in legal reasoning: (1) knowledge of law (substance, procedure, and jurisprudence), (2) principles of logical reasoning, (3) an understanding of human nature, from history, philosophy, and personal observation, (4) knowledge and understanding of custom, (5) specific knowledge of other fields of learning that a given legal question requires.

The first, and most important, element of rigor in the law is a knowledge of the law's substance, procedure, and jurisprudence.  This is the necessary, if insufficient, foundation of legal rigor.  Fewer and fewer are familiar with the substance (cases, statutes, regulations) and procedures of the law.  Every lawyer may know that there is a court decision captioned Roe v. Wade, but few can accurately cite the majority's holding.  We may remember names, but the identifying characteristics escape us.

Equally significant is the jurisprudence that underlies substance and procedure.  I should, rightly, know the elements of a cause of action for battery, and the procedures by which I may advance, or defend against, that claim.  Nevertheless, if I am to be a worthy advocate, I need more: I should know something about the philosophy of the law, the wisdom of it.  (Every law should be able to ask: what principle explains and justifies this recourse?)

Principles of logical reasoning, applicable both to law and other fields, are vital to rigorous legal argument.  Kingsfield, the formidable law professor from The Paper Chase, told his students that they would leave his class "thinking like a lawyer."  I believe that, for the most part, the task isn't to think like a lawyer, but rather to think logically.  Logical thinking, applicable to all fields of learning, requires a grasp of logical fallacies.  A good, logical lawyer should be able to spot a bad, illogical argument.

The third element of rigor in law is an understanding, gleaned from history, philosophy, and observation, of human nature.  We might argue about whether there is, at bottom, something like human nature.  If so, we should part company now, because someone disputing the existence of a fundamental human nature is simply in error.  History, read with discernment, affirms the contention that there is a fundamental human nature.  Centuries of observations confirm basic tendencies and dispositions common to humanity across generations continents, and civilizations.  Personal; observation confirms the implications of history, if idiosyncrasies of the observer, or the observed do not get in the way.  

Rigor in law also requires a recognition of a place's customs and habits.  We may either agree or disagree with these practices and customs, but it's foolish and impractical to ignore their existence.  Many well-intentioned efforts fail for underestimating the weight of custom. (The same is true, of course, of those who underestimate or dent the existence of a basic human nature.)  Ignoring customary or natural obstacles only invites failure, or extreme and oppressive measures to salvage an ill-conceived plan.

Legal rigor also requires that one understand something about the fields that the law implicates.  The best example is in patent law.  A patent lawyer without a working knowledge of the invention under consideration is useless to his client.  Patent law firms, typically and rightly, expect their attorneys to have a knowledge of science and technology relevant to their clients' inventions.  

I cannot say that this is all that legal rigor requires, yet even this brief list presents a daunting challenge.  Standards of excellence in legal reasoning are no easy thing; even diligent, consistent efforts produce only a fraction of all that one might achieve.  This is a case, however, where something is truly better than nothing, for ourselves, our clients, and our society.

FRANK GILBERT 

APRIL 16, 2002