A pickle of a controversy
Today, just like yesterday, land is a source of controversy. There is, we know, plenty of it to go around and even sufficient to satisfy the need of all. However, as is often the case with precious goods, there is too little of it to satisfy the greed of some. Struggles, conflict, and war over land – and the resources they cocoon – are thus standard fare for humanity. In 1895, one such struggle played out before the House of Lords.
Edward Pickles was a lucky man. He lived on a picturesque plot of land in the English countryside, just outside Bradford, and held title over a vast expanse of farmland. If you were fortunate enough to venture on to Pickles’s land, you could just as easily find cucumbers and cattle, cabbage and cornish hens, carrots and kale, all of which were plump, colourful, and appetising and a hit at the local markets. Pickles’s secret was no secret at all: a waterway traversed his land, providing an abundance of nourishment to his crops and animals.
For most people in 1895, access to land, water, food, and livelihood would be sufficient – he was also blessed with a wife and children – but Pickles was not most people and he yearned for more. More of what exactly, he was not sure, but more he had to have. One day, while gazing at his land and the waterway that traversed it from atop a hill, the more Pickles wanted struck him with the same verve that the apple bunked Newton. ‘Eureka’ he cried out. ‘I will build dam on my land to divert the course of the waterway!’ [Why?] ‘A dam will dry out the Bradford reservoir which has the misfortune of being downstream from my good fortune.’ ‘They will have no choice but to buy my land for a princely sum and I will finally have the more that I deserve.’
The dam did not go unnoticed, especially after the water stores in the Bradford reservoir began to recede. Visiting Pickles to discuss the impact of his dam, the Mayor of Bradford learned of Pickles’s aim: ‘Water is the lifeblood of everyone and everything and I have truly been blessed by Lord Almighty with this beautiful plot of land and its bottomless supply of water. Tis unfortunate that the souls of Bradford must suffer so Lord Mayor. I am not an unreasonable man, however, and I am happy to sell my picturesque plot of the English countryside to the Bradford City Council for no more than one thousand gold shillings. Tis true that I only paid one hundred for it this time last year but, as is clear from the Book of Genesis, good fortune smiles on the entrepreneurial.’
Unimpressed by Pickles’s gift of the gab or his knowledge of the scriptures, the Lord Mayor hauled the loquacious farmer before the courts, accusing him of the malicious use of his proprietary rights and demanding that he demolish the dam.
The parameters of legal reasoning
Pickles’s story formed the basis of the second part of our integration week. Instead of a fable, I opted for a legal ruling so as to expose students to the practice, perhaps even the art of legal reasoning. Despite the centrality of logic in the elaboration of laws and in the adjudication of legal controversies, law students rarely have opportunity to learn about deductive reasoning, inductive reasoning, or analogy – three central logical techniques favoured by legal practitioners and scholars – except in the context of the odd foundational course on legal method or upper-year jurisprudence elective.
Assigned an article that dissects legal reasoning, the students were then called upon to apply the various techniques to different legal problems.
I began with deductive reasoning and the Psychoactive Substances Act. Designed to counter the unpredictability of legal highs, the Act prohibits a variety of activities that facilitate the availability of substances capable of producing a psychoactive effect. Beyond legal highs, substances known to have psychoactive effects when consumed include marijuana, cocaine, opiates, and other illicit drugs, providing us with a perfect test case for deductive reasoning.
What is the major premise? Substances that trigger a psychoactive effect when consumed by humans are prohibited.
What is the minor premise? Substance X triggers a psychoactive effect when consumed by humans.
Conclusion? Substance X is prohibited.
In this technique, both the major and minor premises must be true. If they are, then the conclusion is valid.
Of course, a variety of other substances also have psychoactive effects including whiskey, cigarettes, paracetamol, and even bananas, a point that was not lost on the legislators and resulted in the inclusion of a series of exceptions to the otherwise absolute rule, requiring us to modify our premises accordingly:
What is the major premise? Substances that trigger a psychoactive effect when consumed by humans are prohibited unless identified as a legitimate substance in the appendix.
What is the minor premise? Substance X triggers a psychoactive effect when consumed by humans and is not a legitimate substance as per the appendix.
Conclusion? Substance X is prohibited.
When dealing with true premises, deductive reasoning is the holy grail of logic, allowing us to reach an indisputable conclusion. Sadly for law students but happily for legal practitioners, true premises are uncommon. Consider the following query: did British forces engage in torture when using the ‘Five Techniques’ to interrogate detainees in Northern Ireland? Let us try to our hand at deductive reasoning:
What is the major premise? The European Convention of Human Rights prohibits torture and inhuman or degrading punishment.
What is the minor premise? British forces engaged in torture when using the ‘Five Techniques’ against Northern Irish detainees.
Conclusion? British forces committed human rights breaches.
Concise, neat, and persuasive! However, we are interested not in the persuasiveness of the conclusion but the validity: is the conclusion valid? For a valid conclusion, we require true premises. There is no doubt as to the major premise but the minor premise is not as clear cut as we cannot find in the European Convention a definition of torture. If we cannot be certain about the truth of the minor premise, then we cannot be sure of the validity of our conclusion, requiring us to make use of a different form of logic.
Inductive reasoning is useful when have doubts about the truth of either the major or minor premise. Consider the torture example. Since we do not know if the Five Techniques amount to torture, we must investigate how courts have ruled in the past. Is music torture permissible? Different courts have ruled differently. Some have honed in on the decibel level – below 82 does not cause permanent damage – and others on the length of play – prolonged or continuous. Consider the following hypothetical:
Case 1. Music played at 90 decibels for 24 hours: caused permanent hearing loss and deemed torture.
Case 2. Music played at 70 decibels for 36 hours: did not cause permanent hearing loss and not deemed torture.
Case 3. Short bursts of music at 110 decibels every time the detainee is nodding off: not deemed torture.
And so on…
The strength of the rule we extrapolate from the cases will depend on: breadth, representativeness, topicality, and temporality of the sample. Unlike deductive reasoning, where true major and minor premises produce indisputable outcomes, inductive reasoning leads to rational conclusions whose strength depends heavily on the quality of the sample we deploy. Within the common law system, structured around the doctrine of precedent, inductive reasoning is the primary form of logic in operation.
Analogies represent the third form of logic standard to legal reasoning. However, seeing that this blogpost is turning into an article in its own right, I refer you to the article I mentioned at the outset.
Is there logic to malice?
Returning to Pickles, how is the court to resolve the controversy? First, the court can look for a general rule. It is, however, unlikely that a law has been enacted proclaiming whether land owners can behave maliciously when deploying their proprietary rights. Without a true major premise, we must pursue another form of logic: in this case, inductive reasoning.
In this instance, the cases we search for are those that describe appropriate behaviour toward neighbours. Some of these cases may deal with adjacent land, others may focus on the flow of waterways, and others may even tackle issues of social justice or the right to water. Again, the strength of the rule we extrapolate will depend on the quality of the sample we operate with.
The ruling of the House of Lords bears mentioning: The plaintiffs could have no property in the water until it came on their land and they collected it, and ‘if the owner of the adjoining land is in a situation in which an act of his, lawfully done on his own land, may divert the water which would otherwise go into the possession of [Bradford], I see no reason why he should not insist on their purchasing his interest from which this [Bradford] desires to make profit.’ Instead of operating within the traditions of rational argument to reach their conclusion, the House of Lords used a moral argument – a landowner has absolute dominion over their land – to support their position and, in the process, provided an excellent lesson for law students: logic is not the sole basis for a legal ruling.
Welcome to the desert of the law…