David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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I search for an ability of appellate courts to apply the law. I provide the reader with an intuitive understanding of Kenneth Arrow's Impossibility Theorem, a severe mathematical proof relevant to all decision-making processes. I show its relevance for jurisprudential theory. I show how the proof has been misunderstood and underappreciated in legal thought. I then show why appellate courts cannot apply the law: since appellate courts make decisions through a group of members casting equal votes, appellate interpretations are severely limited to certain characteristics. The Arrovian result is that judges, like any group making a decision, compromise based on the power of their subjective preferences, and not on any objective application of a law. Practically, this analysis shows the most controversial cases in law are problematic and predictably irreconcilable - if not seemingly hypocritical - but there is a mathematical and inherent reason for this. The basis for the inconsistency is not necessarily insincerity or deceit by judges, nor even some contemptible strategy by those who appoint them. Rather, institutional limitations interrupt the communal aspirations of group decision-making in our courts.
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