Friday, May 09, 2008

A diction question

In both legal writing and non-legal writing, I have seen increased use of the word "counterfactual" -- sometimes used as an adjective, sometimes a noun -- in contexts where I would have expected to see the word "hypothetical" instead. So a hypothetical situation used to test a legal proposition might now be called either a "counterfactual situation" or simply "a counterfactual."

Does the word "counterfactual" mean precisely the same thing communicated by the word "hypothetical" when referring to an imagined situation used to test a legal theory? If not, what are the differences? Is one term preferable to the other? And, regardless of which might be preferable, is "counterfactual" in practice replacing "hypothetical"?


Christopher Mathews said...

I'm used to seeing counterfactual used as a nontestable hypothetical: "Had x not happened, the result would have been y." The hypothetical cannot be tested because it assumes an antecedent that is contrary to actual fact.

It's distinguished from a more conventional hypothetical: "If x happens, the result will be y."

Anonymous said...

The phrase is being borrowed from the field of history, where it is used to imagine how events could have turned out another way. I think a "counterfactual" is meant to accentuate critical decisions and events in history and to demonstrate that historical events were not inevitable outcomes (e.g., the counterfactual of the South winning at Gettysburg, or the success of the Germans in Operation Barbarrosa).

I don't think this is inconsistent with CM's explanation above.

CAAFlog said...

If I'm right that its use is increasingly leaking into both legal writing and mainstream journalism, is it simply a buzz word, is it superior to "hypothetical," or is there some alternative explanation for its increased prevalence?

Christopher Mathews said...

Anon is right -- alternate histories are probably the most popular form of counterfactual writing.

I'm not altogether sure whether the term is being used more often, or why that would be, although in an environment where things aren't going precisely according to plan, there's probably a greater temptation to engage in counterfactual speculation.

I trust I'm not being overly oblique.

Anonymous said...

It seems to me that as a matter of usage, "counterfactual" should be limited in application to a major or critical event or decision.

So, I guess if one was hell-bent on using the word "counterfactual" in a legal context, one could ponder changing one key event or decision in a set of existing facts - "tweaking" the existing fact pattern. (Counterfactual: Suppose Smith had fired his gun in fear for his life?)

But, we move to a "hypothetical" when we begin playing around more and more with the variables in a given legal problem. (Hypothetical: Suppose Smith had used a knife?)

Given what Garner and Scalia just said in their book, "Making Your Case," where they urge simplicity and consistency - I think hypothetical is the superior term.

The only downside is that is has become a badge of honor in American bureaucracy to refuse to answer a hypothetical question - even if the question is not that hypothetical. Maybe these bureaucrats could be tricked with a "counterfactual" question.

By the way, Scalia says one of his pet peeves is when counsel refuses to engage one of his hypotheical questions. He hates it when counsel responds, "thats not this case." (Duh!)