View/Open - Scholarly Commons Home

cases by means of precedent; “by trying to show an analogy with previously decided
cases” (Heiner, 1986, p. 228).
Law as a system of rules
Part of the problem with positivist methods is the perception that law is simply a system
of rules which can be objectively applied to any situation to establish an outcome.
There are plain case examples when this is possible, such as, the indisputable violation
of a speed limit accurately measured by sophisticated technology. The rules can simply
be applied to the situation to reach a clear conclusion. Was the car travelling at 80 km /
hour? Yes. Was this person driving the car? Yes. The speed limit was 50 kms / hour.
The speed limit has therefore been broken. This is a simple example of deductive
reasoning.
However, the use of technology is limited to areas in which the evidence and the law
requires little or no interpretation, such as the dispensing of speeding tickets, or driving
through red traffic lights. But even in such apparently clear cut situations, the
conclusion may not be so straight forward. What if the driver was rushing a heart attack
victim in a life-threatening condition to hospital? Does the rule of law still apply? The
intention of speed limits is surely not to prevent benevolent citizens from aiding the
plight of a critically sick man. In reality, someone must interpret and apply the law, and
have the authority to resolve conflicts over its meaning and interpretation (Zuckert,
1995, p. 66). And any requirement for human judgement signals the introduction of
values as integral to the administration and application of the law.
As Holland and Webb rightly point out, there are clear limitations to relying on value-
free logical processes. The ‘truth’ in court is not found by discovering objective,
empirical truths; it is established by arriving at an agreed view of events (Holland &
Webb, 1991, p. 207). And this is dependent on the values of decision makers. Consider
the following example which at first glance appears to be a simple example of
deductive reasoning.
Kevin is lying dead with a bullet in his head. Evidence.
Lee is standing over Kevin with a smoking gun in his hand. Evidence.
Lee is therefore guilty of murder. Evaluation.
37