THE VIRTUES OF REDUNDANCY IN LEGAL THOUGHT
38 Cleveland State Law Review 153 (1990)
Randy E. Barnett
II. CONVERGENCE AND CONFIDENCE III. WHY THE VIRTUES OF REDUNDANCY ARE OVERLOOKED IV. ACHIEVING CONVERGENCE BETWEEN COMPETING MODES OF ANALYSIS A. Achieving Convergence by Retracing One's Steps B. Achieving Convergence by Rethinking the Rule of Law C. Achieving Convergence by Rethinking Justice V. COPING WITH INTRACTIBLE CONFLICTS BETWEEN COMPETING MODES OF ANALYSIS VI. CONCLUSION: REDUNDANCY AND IMPARTIALITY
Redundancy has had a bad reputation among legal intellectuals. When someone says, for example, that the ninth and tenth amendments are redundant, we can
be pretty sure that this person attaches little importance to these constitutional provisions. Listen to one of the definitions of redundant provided by the Oxford English Dictionary:
"superabundant, superfluous, excessive." 1 In this essay, I propose that legal
theorists pay serious attention to the concept of redundancy used by engineers. I explain how redundancy- in this special sense- is essential to any intellectual enterprise in which we try to reach action-guiding conclusions,
including the enterprise of law. I will describe the virtues of redundancy in legal thought. My interest in the virtues of redundancy
grows out of my interest in the social function of the liberal conception of justice and the rule of law. For as soon as we acknowledge the legitimacy of both
justice and the rule of law, we are confronted with potential conflicts between these concepts when attempting to decide the merits of a particular act. Because these concepts are inherently different from each other, an
analysis based on justice may lead us in one direction while an analysis of the rule of. law may lead in another. The possibility-indeed the inevitability- of, such conflicts leads legal intellectuals to establish a hierarchy
of values such that in cases of conflict one value governs. So some may consider a substantive concept of justice to be primary while others emphasize the rule of law. Thus some judicial conservatives accuse their
leftist adversaries of being "result-oriented," while others on the left accuse their conservative opponents as being "formalist." Each camp is willing to jettison the less-favored value whenever
it conflicts with the value on, which it places a premium. To appreciate the virtues of redundancy in legal thought, we must first consider why an exclusive reliance on either justice or the rule of law is misplaced. Put another way, I want to explain why it is useful to rely on two (or more) different modes of analysis even though in many cases these modes of analysis are "superfluous" or redundant insofar as they generate the same result and even though such reliance will at times yield conflicting evaluations. Indeed, I want to claim that such conflicts serve an important function. Let me begin by briefly summarizing my thesis. II. CONVERGENCE AND CONFIDENCE
We all carry with us an extensive set of beliefs or opinions about most matters that relate to our lives. We critically analyze
our beliefs because we know that it is quite possible that any of the opinions we currently hold may be in error. Yet because we also know that any of our methods of critical analysis are fallible, we rely on different
methods of analysis that have proven their value over time and that we have reason to think capture something that is true about the world we live in. The perceived soundness of our modes of analysis does not depend merely on
their being widely accepted, but, rather, we generally accept as "sound" those methods of critical analysis that have been recommended by both our experience and our reason. Conversely, we reject as unsound even
popular methods of analysis-such as astrology-that we have no reason to think capture anything that is true about the world. My thesis is that
the degree of confidence we have in any of our beliefs largely depends upon the degree to which the different methods we use to critically assess our beliefs converge on the same conclusion. The greater the number of
different sound methods of evaluation that converge on a single conclusion, the more confident we can be in that conclusion. Conversely, a conflict between competing sound modes of analysis over a particular conclusion should
lessen our confidence in it and motivate us to search for a better approach. The virtue of adopting multiple or redundant modes of analysis is, then, two-fold: (a) convergence (or agreement) among them supports greater
confidence in our conclusions; and (b) divergence (or conflict) signals the need to reexamine critically the issue in a search for reconciliation. In sum, convergence begets confidence, divergence stimulates discovery.
We may think of this as a "checks and balances" theory of decision-making. Traditional constitutional theory justifies a
separation of powers on the grounds that each distinct branch of government is supposed to act as a "check" on the others. Although any given decisionmaker can err or abuse its power, we cannot always detect when
error or abuse has occurred. Consequently, we can be more confident in actions taken by a system in which distinct institutions with different constituencies and procedures must concur on a single course of action than one
that relied exclusively on a single decisionmaker. This is not to say that the failure to take action in the absence of unanimity may not sometimes prove to be a problem. Rather, the idea is simply that, whatever the
costs of inaction, we can be more confident in the actions we take when all agree than when one or more branch of government is willing to oppose a particular course of action.
Similarly, in law an "easy" case is one in which all our methods of analysis reach the same result giving us a high degree
of confidence in this result. For example, we can be more confident that a particular statute creates a duty of obedience when we conclude that its substance is consistent with an analysis of justice, that it has the appropriate formal qualities, and that it was enacted by sound procedures.
If being "redundant" is synonymous with being unnecessary or superfluous, then neither mode of analysis is redundant. But if, however, the term "redundancy" is used as in engineering to refer to parallel systems that work in the event another system fails, Analogously, in evidence law we heighten our confidence by permitting the introduction of so-called "cumulative" evidence. For
example, when the identity of an assailant is at issue, we permit several witnesses each to testify that the defendant was the culprit. All other things being equal, when many witnesses converge independently on the same
person, we can be more confident in their identification than when a single witness identifies a defendant, or when different witnesses disagree about whether the defendant was the assailant. In sum, cumulative or
"redundant" evidence is relevant and admissible because it can affect the confidence of the fact finder in reaching a conclusion.
The virtues of redundancy extend to moral reasoning as well. For example, to determine the requirements of justice
(as distinct from the rule of law), we may begin with a historical inquiry to identify the rights that have evolved over time in legal systems that adhere to sound procedures. We may then evaluate these evolved rights against
the results recommended by an abstract deontological moral rights analysis. Finally, we may "check" the results of these two modes of analysis by evaluating the social consequences of adhering to the rights they recommend.
Some may see a subtle difference between my use of the term redundancy and its use in engineering. In my
account we constantly evaluate our conclusions by a variety of different analytic methods to achieve some degree of confidence in them or to identify areas that require further discovery. In an airplane, however, we normally
rely exclusively on a "primary" system, and shift to the redundant or "back-up" system only when our primary system fails. Moreover, when we shift, we shift completely to the back-up system and rely
upon it exclusively until we land. If there is a difference in usage, however, it is more a matter of degree than of kind. On
the other hand, in both law and moral reasoning we generally adopt one mode of analysis as primary and then check it against other secondary modes of analysis. For example, we may primarily rely on doctrinal analysis to
determine legal results, except in comparatively rare and difficult cases when we must reconsider the results suggested by a doctrinal analysis in the more theoretical light of justice and the rule of law. Elsewhere I have
described the legal reasoning process of applying doctrine consisting of rules and principles to facts and of checking doctrine against theory as "three-dimensional." 10
In this way, the primary system of legal thought is doctrinal-what the general public thinks of as "the law"with legal theory and such deeper theoretical concepts as justice and the rule of law operating in a secondary or "back-up" manner.
Another potential difference between engineering and legal redundancy is that while redundant subsystems in most engineering applications
tend to be identical to each other, in law we avoid system failure by relying on modes of analysis that differ from each other. This is because the typical engineering problem is to cope with subsystem failures caused by
component failures when there is no doubt that a subsystem, if operational, would accurately perform its designated function. In law (and in unusual engineering applications), however, the problem is that even a fully
functioning mode of analysis can err or be abused so redundancy requires multiple subsystems of analysis each constructed according to different criteria to detect such errors or abuse. The engineering concept of redundancy
is broad enough to encompass both strategies of achieving fault tolerance.
III. WHY THE VIRTUES OF REDUNDANCY ARE OVERLOOKED At least three
reasons explain why the virtues of redundancy are so commonly overlooked. First, moral philosophers and legal intellectuals do not spend much time worrying about easy cases where differing modes of analysis converge.
Their primary concern is with hard cases in which sound methods of analysis recommend conflicting results. The curiosity of moral philosophers is piqued when the best analysis of moral rights seems to conflict with the best
analysis of consequences. Such cases then become their primary and often their exclusive concern. Similarly, legal thinkers are provoked when, for example, adherence to the formalities of the rule of law seems to
require the injustice of releasing a guilty criminal or of refusing to enforce a contractual commitment. Nevertheless, a relentless focus on hard cases where competing modes of analysis diverge can be like staring into the
sun. It can cause one to see nothing but hard case-, and blind one to the importance of cases where convergence exists.
Second, modern intellectuals are trained to accept the principle of parsimony-or "Ockham's razor" The source of this preoccupation with
finding a single best account provides a third reason why the virtues of redundancy are overlooked. Intellectuals in many disciplines, from law to philosophy to economics, are often oblivious to the serious practical problems of knowledge and interest that pervade actual decisionmaking.
IV. ACHIEVING CONVERGENCE BETWEEN COMPETING MODES OF ANALYSIS
Suppose we accept the twin virtues of redundancy: convergence begets confidence and divergence stimulates discovery. When a conflict
between modes of analysis appears, how exactly are we to deal with the tension? In the balance of this article, I discuss some well-known examples of a divergence between justice and the rule of law to illustrate various waYs
we deal with such divergence. In this section, I discuss the different ways to resolve divergence and achieve convergence. In the next section, I will suggest how we cope with seemingly irreconcilable conflicts between
sound modes of analysis. A conflict between normally sound modes of analysis provides important information about the existence
of a possible problem either 'with the application of our analytic techniques or with the techniques themselves. Without such conflicts we would have no reason to reconsider either our analyses or our analytic
methods. To consider how conflicts between different modes of analysis can be productive, let us consider cases in which justice seems to be in conflict with the rule of law.
In the introduction to this article I offered the following distinction between justice and the rule of law: Justice refers to
the correctness of the end or results of a legal system; the rule of law refers to the formal and procedural correctness of the means used to reach these results. To be sure, we sometimes use the term
"justice" to refer both to the correctness of a result as well as to the propriety of the procedure by which it was reached. According to this usage, there are two categories of justice: "substantive"
justice on the one hand and "procedural" justice on the other. However, since the liberal value of the rule of law is the traditionally accepted term that corresponds to procedural justice or "legality,"
we are left with the term "justice" to refer to the correctness of result as assessed by criteria other than the rule of law.
This way of distinguishing between justice and the rule of law reveals that a conflict can occur when an end we think to be correct conflicts with a means we also think to be correct. For example, suppose that police search a
murder suspect's apartment and obtain vital evidence-bloody sheets and clothes. Because such evidence is both reliable and relevant to the charge, it would ordinarily be admissible in a criminal trial of the suspect.
Because it is both relevant and reliable, the evidence provided by the sheets and clothes serves the just end of establishing the guilt of a murderer. Now suppose that the search was "unlawful" because it was
instigated by a voluntary statement made by the defendant after having been arrested without probable cause. Although the admission of such evidence is just with respect to the end of convicting a murderer, it violates the
rule of law because it was obtained by procedurally flawed means. Considerations of justice argue in favor of admitting this evidence, while rule of law considerations argue for exclusion. Although I shall continue to
concentrate on this example, the same type of conflict arises elsewhere. For example, the statute of frauds requires that to be enforceable certain promises be in writing. The absence of a writing undermines the
legitimacy of enforcing even a promise we are quite sure was made. How are such conflicts to be resolved? I shall consider three ways of resolving conflicts by achieving convergence. A. Achieving Convergence by Retracing One's Steps
The most obvious and probably the most common way to relieve a tension that develops between competing methods of analysis is to
retrace one's steps. When addition of a column of figures yields a sum that is unexpectedly high or low we usually recalculate to see if we might have made a mistake. When we reach two different sums in two tries, we
usually try a third time to see which of the two conclusions was right. Of course, the divergence between our initial calculation and our expectations presupposes some competing source of expectations other than formal
calculation. For example, when figuring my travel expenses for a business trip I may find the calculated sum to be high or low
according to my experience on past trips or perhaps according to a rough running total I kept in my head during the trip. To disregard knowledge based on my past experience when it conflicts with knowledge based on a formal
computation would be irrational, if recalculating the figures is easy enough to do. Suppose that when I recalculate my expenses I find that I had previously erred in my formal computation. Convergence of conclusions
between my formal calculations and my experience is now attained. I need reexamine neither my formal method of calculation nor my experience.
To illustrate how we can retrace our steps in law, consider a case I worked on as a criminal prosecutor, involving a motion by a defendant
to suppress his confession to murder. Chicago Police Department homicide detectives were at a loss to solve a vicious murder of a husband and wife. The man and woman had been hog-tied in their apartment and repeatedly
shot in their heads in the presence of their young children. Having no leads whatsoever, the detectives began interviewing all arrested persons to see if any of them had heard anything "on the street." The
defendant, Joseph Cooley, had been taken into custody on an entirely unrelated burglary charge. Cooley told the homicide detectives that he had heard about the crime and that a person he knew only by a nickname had committed
it. The police asked for a description of this person and where they might find him, and Cooley provided the information. When the police were unable to locate the person, Cooley agreed to help the police look
for him. Eventually, the police began to suspect that the person described by Cooley was fictitious and that Cooley himself might have committed the crime. At this point, they advised Cooley of his constitutional rights
and he confessed to having committed the murder with a friend of his named Sammy Bynum. When questioned about the murder and confronted with Cooley's statement, B-,-num also confessed.
It was well-settled that a statement by a person who had not been advised of his constitutional rights made during a "custodial interrogation" could not be used at trial by the prosecution.
I searched long and hard for cases to justify admission of the confession but to no avail. I
was haunted by the thought that, notwithstanding the rules of criminal procedure as I understood them, what the police had done somehow made sense. After several frustrating days, I pulled back from my research and thought
about the doctrine upon which the defense was relying. What evil was this rule supposed to address? The rule was intended primarily to prevent the inherent coercion of a custodial interrogation from leading to false
confessions. Also, the repeated act of reciting these rights serves to remind police officers that suspects in custody have constitutional rights that the police are legally bound to respect. Moreover, there is a sense
that, wholly apart from its effect on confessions, it is simply unjust for police to mistreat suspects in their custody. For all these reasons, a rule of thumb had developed among both police and criminal lawyers that any
statement made by a defendant while in custody is inadmissible unless, prior to making the statement, the defendant had been apprised of his or her rights.
In my case the defendant was unquestionably in custody. . . but wait! The rule of thumb rested solely on whether or
not the defendant was in custody. The cases upon which this rule of thumb was based, however, spoke in terms of a "custodial interrogation." In this case, perhaps the police conduct seemed reasonable
because the normal coercion incident to an interrogation (custodial or otherwise) was absent. The police had no reason to suspect this defendant and no reason to mistreat him to gain the information they desired; they were
simply eliciting information from every criminal suspect with whom they came in contact. (Although the defendant was undoubtedly motivated to fabricate his story to obtain some consideration on his burglary charge, this type of
motivation was not considered by courts to be unduly coercive, unless the police induced the statement by making promises of a benefit.) Notwithstanding that the defendant was in custody, perhaps this was not an interrogation at
all; perhaps it was a custodial conversation. In these circumstances, the fact that the defendant was in custody did not create, as it usually does, the element of coercion and abuse that the rule was devised to
address. With this theory in mind, I went back to the books and reviewed several examples of statements that had
been admitted into evidence despite the fact that the defendant was in official custody when the statements were made. In each of these "exceptional" cases the elements of an interrogation appeared to be
lacking. Although I thought they established the plausibility of my theory, these cases were not substantially similar to mine, and none made the explicit distinction between interrogation and conversation
that I was planning to urge upon the judge. Then I happened upon the case of United States v. Wiggins.
In Wiggins, the police were baffled in their effort to solve a murder
and the defendant was in custody for an unrelated burglary. In the course of questioning every person arrested for a crime, they spoke with the defendant, Charles Wiggins, who told them he had heard who had done it.
When the police were unable to find the person Wiggins had described, they asked if he would help them locate him. Eventually, the police came to suspect Wiggins and they advised him of his constitutional rights.
Wiggins then confessed. The only salient differences between my case and Wiggins were the charge for which the defendant was initially arrested (auto theft, not burglary) and the fact that in Wiggins the
defendant initiated one of the pre-warning statements. In Wiggins, the Court of Appeals for the
District of Columbia held that, although the initial statements were made while the defendant was in custody and before he had been advised of his rights, these statements were not the product of an interrogation, but were
conversational in nature. In its ruling, the court cited no precedent with any comparable facts; as near as I could determine at the time, no appellate court in the country had so held up to then. Relying on my theory
(except it wasn't really my theory anymore) and Wiggins, I asked the judge to deny the defendant's motion to suppress the statement and he did. After the motion was denied both Cooley and Bynum pled guilty to the crime.
Although I gained much satisfaction from my work on this case, I do not believe that my effort was extraordinary. To the
contrary, I think it is a rather typical example of how lawyers deal with cases where they perceive a conflict between a just outcome and the rule of law. This story suggests how a better understanding of the law is provoked
by tensions between methods of analysis. When there is an apparent conflict between justice and the rule of law, we may be moved to retrace our steps. The fault may not lie in our settled abstract conceptions either of
justice (murderers should be convicted) or of the rule of law (confessions obtained improperly should be suppressed), but in our specific understanding of these conceptions. Here an apparent tension between the justice of
convicting the murderers and ensuring that the police adhere to the rule of law motivated a reexamination of the rule as applied to the facts of the case. Also informing this reexamination was a perceived conflict between a
rule of thumb that had developed in practice and my intuition that the police had acted reasonably. Examining the theoretical basis of the rule
(no statements made during custodial interrogations without warnings) revealed a conflict between the original rule and a rule of thumb (no statements made while in custody without warnings) that had evolved in practices conflict
that I and many others had not previously perceived. I concluded that, in light of the underlying theory of the original rule, the rule of thumb was seriously misleading in this case. (It remains, however,
a serviceable rule of thumb for most cases. B. Achieving Convergence by Rethinking the Rule of Law
Sometimes resolving a conflict between our modes of analysis requires us to alter our methods. For example, a hard case in which justice
appears to conflict with the rule of law may require that we modify our conceptions of either justice or the rule of law or both. At us consider again the exclusionary rule for evidence gained as a result of an illegal
search. In such a circumstance, the apparent lack of convergence is between the means employed (the illegal search) and the end being sought (the conviction of the guilty). The trauma caused by this conflict may,
however, motivate us to reconsider the merits of the exclusionary rule itself. Without a sense of the injustice of releasing a guilty offender we would have no reason to search for some alternative to the exclusionary rule. Let us assume that the principal reason for excluding from a trial evidence obtained from an illegal search is to deter police from
conducting illegal searches in defiance of the Constitution. Now suppose there was a different remedy that could be afforded to all victims of police misconduct and that did not conflict
with the justice of using reliable evidence of guilt. The remedy that immediately presents itself is monetary damages-the normal way that tort law compensates for the most serious of physical and emotional injuries and even
for death. Suppose it was shown that requiring police departments to compensate the victims of their employees' illegal conduct-including those victims against whom no incriminating evidence was found-in an efficient
administrative setting (while allowing the prosecution to use the illegallyseized evidence at trial) would deter misconduct as well as, if not better than, the remedy of exclusion. We might then resolve this conflict between
justice and the rule of law and achieve convergence by adjusting our conception of one of these modes of analysis-in this case our conception of the remedy we use to rectify violations of the rule of law. On the other hand,
had the illegal police conduct undermined the reliability of the evidence obtained, as in the case of a coerced confession, such evidence would still be inadmissible. Even if some coerced confessions are in fact truthful and
accurate, coercion is likely to decrease the reliability of confessions in ways that cannot be effectively discerned by a court and the end of justice will not be well-served by relying on such tainted evidence. Of course, it may be that restitution would not deter police misconduct as effectively as the exclusionary rule. C. Achieving Convergence by Rethinking Justice Just as convergence may be achieved by altering the means to better fit the ends,
we may sometimes reconsider our ends in light of the means that such ends require. With drug prohibition, for example, the police are required to enforce a ban against consensual adult behavior on the grounds that such
conduct is unjust. Suppose, however, that due to the lack of a complaining witness in most drug cases (and other consensual crimes) this end simply cannot be obtained without conducting wholesale illegal searches or by
creating so many exceptions to the prohibition on unreasonable searches that the Fourth Amendment is seriously weakened as a barrier to government misconduct. The seriousness of this conflict between means and end may call
into question the justice of the end of drug prohibition. Of course, simply highlighting the apparent conflict between the justice of drug
prohibition and the means that are needed to enforce it is not dispositive. We would not be moved to reexamine the law prohibiting murder, notwithstanding that such a crime also lacks a complaining witness. Still, the
trauma created by a profusion of intrusive police tactics might well provoke a more careful scrutiny of the underlying end of such laws. Such scrutiny may reveal pertinent distinctions between consensual conduct and murder
that lead us to conclude, not only that the end does not justify these means, but that the end itself is not justified. Initially provoked by a serious conflict between justice and the rule of law we may come
to conclude that punishing drug consumption is an unjust interference with choices that lie within the moral jurisdiction of individuals. Assuming one accepts my account of the two virtues of redundancy, some may still
object that the thesis presented here is trivial. Everyone knows that convergence begets confidence, and divergence stimulates discovery, they might say; what do we do when conflicting modes of analysis resist our most
diligent efforts at reconciliation as they seem to do in so many areas of law? Moreover, such intractable conflicts force us to choose between our modes of analysis and, by choosing, reveal which mode is really fundamental to
the others. It is not clear, however. how this objection undermines the thesis presented here unless it is assumed that convergence and the confidence it engenders are extremely rare or that conflicts between modes of
analysis rarely lead to the discovery of new knowledge. Such claims would need to be substantiated, not merely asserted. In sum, the problem of intractable conflict may be worth serious consideration without rendering
the thesis presented here at all trivial. But dealt with how? Because my views on this issue are still developing, my description of the method by which we handle seemingly intractable conflicts-what I
will call presumptive reasoning-will be brief and merely suggestive.
We normally handle unyielding conflicts by adopting an operative presumption. For example, we may presume that an action
recommended by all relevant modes of analysis is legitimate and that an action about which modes of analysis intractably conflict is illegitimate. Either presumption can be rebutted under special circumstances, but unless
such circumstances are established, we adhere to the outcome recommended by the operative presumption.
In constitutional law, when the legislative, executive, and judicial branches of government disagree on the constitutionality of
a federal statute, we presume such a statute to be illegitimate and refuse to enforce it. These are examples of a presumption of invalidity that applies when our multiple modes of analysis diverge, but this is not
the only type of presumption that can handle such conflict. A presumption of priority designates one of several modes of analysis as presumptively governing a situation in which differing modes of analysis
conflict. For example, in constitutional law, the Supreme Court has adopted what it calls a "presumption of constitutionality"
We may also use a presumption of priority to determine what justice requires when faced with a conflict between a moral rights and a
consequentialist analysis. Suppose, for example, that a moral rights analysis recommends against interfering with an individual's freedom of choice, while a consequentialist analysis recommends such interference. We
might presume such interference to be unjust, while allowing that an overpowering consequentialist case for interference might rebut our normal presumption favoring a moral rights analysis. Permitting a moral rights analysis
to prevail in the absence of convergence does not eliminate any use for consequentialist analysis, and permitting consequentialist analysis in extraordinary circumstances to rebut the normal presumption favoring moral rights does
not reduce this type of approach to pure consequentialism. In such a scheme, the moral rights analysis is setting the agenda; only outcomes that survive a moral rights analysis are then subjected to consequentialist scrutiny.
Presumptive reasoning, it should be emphasized, does not eliminate hard cases caused by conflicting modes of analysis. However, by
converting a case that remains hard in principle into one that is easy to decide in practice, presumptive reasoning can provide a practical way of coping with conflicts among competing modes of analysis in the absence of an
ultimate resolution of the conflict. Cases where the exclusionary rule requires the guilty to escape conviction are hard to accept, but not hard to decide. Regardless of the injustice caused by its suppression, until we
resolve this conflict, illegally obtained evidence is simply inadmissible; call the next case. The use of presumptive reasoning is pervasive. The process by which our set of operative presumptions evolves is a subject
worthy of more extended discussion than I shall attempt here. Suffice it to say that, as presumptions proliferate, it is likely that such proliferation will provide previously unavailable information that may permit reform of
the inherited set of default decisions. That is, as the set of exceptions to a previously serviceable presumption is articulated, it may eventually become clear to observers and participants that the presumption itself
requires modification, perhaps even reversal, so as to capture the outcomes now expressed as exceptions to the rule. In contract law, for example,
simple promises are presumptively unenforceable. For a time, only those promises supported by bargained-for consideration were presumed to be enforceable. Exceptional cases in which promises were enforced in the absence
of consideration were clustered in an ad hoc doctrinal category known as promissory estoppel. As this category has expanded, the original presumption limiting enforcement to promises supported by bargained-for consideration
has been widely criticized (but not yet replaced). If, however, the existence of bargaining is viewed not as the sine qua non of contractual obligation, but as evidence of the parties' intention to alienate
rights, then there may be other ways of manifesting such intent besides bargaining. In many, if not most, promissory estoppel cases, there exists some other manifestation of intent to be legally bound- perhaps a formality of
some kind-even though a bargain is lacking. By replacing the presumption based on bargaining with a presumption based oil a manifested intention to be legally bound, most of the formerly exceptional
promissory estoppel cases could be "justly" decided by the prevailing presumption. In sum, the process of developing an increasingly elaborate set of presumptions and exceptions
can sometimes provide the knowledge necessary to simplify the system of presumptions in a way that, without a complicated past, would have been nearly impossible to conceive from the armchair. Of course, once discovered, the
new system of presumptions may still be critically evaluated to see whether it serves the values of justice and the rule of law. An
evolutionary account of presumptions must include not only how we come to change our presumptions in the light of new information, but also how it is that some presumptions-such as the presumption of innocence-have proved to be so
remarkably stable over time. It may be that certain features of social life are so ubiquitous that they can accurately be characterized as part of the unchanging nature of human social life. To the extent these problems
remain constant, evolved ways of handling them -such as the presumptions specified by the liberal conceptions of justice and the rule of law-are likely to remain relatively stable as well.
All of these dichotomous categories of analysis are conceptual tools that have proved useful to understanding, but each mode of
analysis captures a necessarily partial view of the world we inhabit. Because each view is partial, however, it is not circular to use each side of a dichotomy (or trichotomy) to criticize the other. Viewing a given
phenomenon from a variety, of partial, though sound, perspectives provides a clearer picture of the underlying phenomenon itself. The more different sound modes of analysis we consult, the more impartial our vision becomes,
The values associated with justice and the rule of law are two such partial, but sound, perspectives of law. Much as our brain's ability to fuse the slightly different two-dimensional perspectives of each of our eyes enables
us to see in three dimensions., a superior vision of law results from the fusion of justice and the rule of law. |