Why Law Breeds Cycles

Intransitive choices are generally held to be the mark of irrationality. When a set of rules engenders such choices it is usually held to be irrational and in need of reform. Many legal arguments involve showing the deficiency of a doctrine, a theory, or an argument, by showing that it leads to intransitivity. In this essay we try to show that rule-based reasoning is by its very nature certain to lead to intransitivity, not just here and there but widely. This raises difficult questions as to what should count as a valid logical objection in legal argumentation. Along the way, it casts new light on the controversy about rights-based legal theories, Kaplow and Shavell’s “anti-fairness” theorem, and Sen’s liberal paradox.