Legal reasoning
Legal reasoning – reasoning (thinking, arguing) which is employed in law, including judicial practice, legal counseling, defending a case in a courtroom, legal education and legal (juridical) science[1]. It takes different forms and is of different structures. Also its mode can be divergent. It is sometimes associated with legal logic (non-formal logic) and legal rhetoric (argumentation) or just regarded as equivalent to legal thought (considerations)[2][3][4][5][6][7][8].
Most common forms[edit]
The forms reasoning in law takes on are especially:
- legal deduction
- legal induction
- legal analogy
- reasoning from legal principles (their balancing)
- reasoning from policy or policies[6][9][10][11][12][13][14][15][16][17][18].
Other instances[edit]
Rules of legal interpretation (construction) of canonical texts and precedents as well as rules of resolving collisions between conflicting statutory provisions and binding judicial precedents might be also counted as kinds of legal reasoning or its parts[1]. The same applies to the rules which enable lawyers to differentiate ratio decidendi from judicial dicta or which lead to distinguishing of judicial precedents[19] as well as different arguments that are allowed to be invoked in legal discourse[4][20].
The special case of legal reasoning is reasoning that consists in assessment of credibility of proofs such as testimony and opinions of non-legal experts[21].
As legal reasoning, one may also regard reasoning which occurs during enacting legal acts – however such a meaning of it is not common[1].
Unique nature[edit]
Reasoning in law is of a peculiar nature since it is employed in a specific environment and by specific persons (judges, advocates, officials). Specifically, the peculiar nature of legal reasoning results from the fact that: there is no possibility of empirical verification of its outcomes; persons who reason by it usually lack specialized non-legal knowledge (of sociology, economics, psychology, etc) and as a rule are not experts in any advanced theories on good and evil or dispensing of justice; the value of its outcomes is – to a large extent – contingent on authority of those who arrived at these outcomes; prior knowledge that its outcomes will have a direct impact on people’s affairs – and in this sense it cannot be regarded as a sort of art for art’s sake; it is supposed to improve the content of law in case of its quality is insufficient, that is, to make the law after its being applied: rational, consistent, sensible, expedient, and morally acceptable[22].
Psychological perspective[edit]
From the psychological perspective, legal reasoning involves elements of rational reasoning as well as elements of intuitive reasoning. The former is present in execution of general rules in law, while the latter takes part in making decisions as to which of such rules should be chosen when more than one of them can be applied as well as during establishing occurrence of relevant similarity within legal analogy[23] and doing subsumption within legal deduction or achieving balance between countervailing principles. Its role is also considerable is assessment of proofs and ascertaining their evidential value[24] As Aleksander Peczenik mentions, “the judge himself may thus rightly feel that the decision is morally justifiably, but at the same time be unable to formulate a satisfactory justification. He may thus rely more on his decision than on highly general and otherwise coherent reasons he can put behind it. This situation is psychologically quite natural, since a great part of human decision making is dictated by unconscious mechanisms. To be a good judge, one need not be an equally good legal philosopher: One may, inter alia, be unable to make it clear, which general value judgment and reasoning norms would in combination with the statutory provision and the facts of the case logically imply the decision”[25].
Rational perspective[edit]
It is disputable how much legal reasoning should be rational and how much it can be irrational (non-rational) or inexplicable on rational grounds[26].
Hermeneutical perspective[edit]
From the hermeneutical perspective, legal reasoning has stages and is not standardized, being without the fixed end and the fixed beginning and having circular structure. It just happens in time and is preceded by preunderstanding. The law is produced as its result and does not come into being until legal reasoning is conducted[27].
Descriptive and normative prescriptive[edit]
Descriptive attitude to reasoning in law aims at showing how lawyers and judges in reality reason in law. Normative attitude to reasoning in law indicates only how lawyers and judges may or might reason in law according to one’s more or less realistic conception[28]. Within descriptive perspective it may also be distinguished attempts which strive for uncovering the real process of reasoning in law from attempts striving for showing how this process is presented in judicial opinions. Accordingly, Cass R. Sunstein states that: “The effort to describe legal reasoning is not an attempt at uncovering judicial psychology – a task for biographers – but instead an attempt, with inevitable evaluative features, to capture how lawyers and judges offer public justifications”[29]. And Martin P. Golding notes that his exposition “is about legal reasoning in the narrow sense, with particular focus on judges’ decisions on questions of law. In the narrow sense of the term, “legal reasoning” refers to arguments that judges give, frequently in written form, in support of the decisions they render”[30].
Other perspectives[edit]
Legal reasoning can be also perceived as a sort of formal or even mechanical deliberations (legal formalism, legal positivism, legal normativism and analytic philosophy) or metaphysical speculation or discourse and argumentation (argumentative theories of law) as well as a social (American legal realism) or psychological fact (Scandinavian legal realism) or conflict of colliding values (Critical legal studies and generally, postmodernism in law)[6].
Relation to law[edit]
It is sometimes claimed that law and reasoning employed therein cannot be separated from each other and in fact are interconnected or even merge into one entity. As Maciej Koszowski remarks, “I rather believe that legal reasoning and legal contents constitute two faces of the same phenomena which is law as such and, in fact, are indissoluble. This, inter alia, finds support in the conviction that the law — in common law but also in civil law legal families — to a great extent amounts to the outcomes (or its prophecies) of the legal reasoning employed in relation to the concrete or hypothetical cases”[31].
The USA and the UK[edit]
In the USA, reasoning in law is often equated with reasoning by analogy. Thus Keith J. Holyoak and Paul Thagard state that: “One of the most important domains in which analogy is routinely used is the law”[32]. Lloyd L. Weinreb remarks that: “Analogical arguments are, however, especially prominent in legal reasoning, so much so that they are regarded as its hallmark”[33]. Cass R. Sunstein notes that: “Analogical reasoning lies at the heart of legal thinking and for good reasons[34]. Douglas Walton claims that: “Arguments from analogy are common in law”[35]. Edward H. Levi says that: “The basic pattern of legal reasoning is reasoning by example”[36]. And Scott Brewer indicates that: “Legal argument is often associated with its own distinct method, usually referred to as “reasoning (or argument) by analogy,” indeed, if metaphor is the dreamwork of language, then analogy is the brainstorm of juris’-diction’”[37]. However how analogy is exactly to work here, how the establishment of sufficient similarity between the cases being compared is effectuated within it, is seldom elucidated, much less in detail. In general there are three orthodox approaches: a) common rule(principle)-based, b) combining similar facts with reasons which speak for a given legal outcome, c) logical (natural, cultural) similarities and dissimilarities counting[38]. Bartosz Brożek in turn states that: “It is my claim that analogy is partially reducible to the process of balancing” of countervailing principles[39]. As Lloyd L. Weinreb, Maciej Koszowski and Charles Fried also say respectively, “in law as in life, analogical argument is a valid, albeit undemonstrable, form of reasoning that stand on its own and has its own credentials, which are not derived from abstract reason but are rooted in the experience and knowledge of the lawyers and judges who employ it”[40], “the core, crux, nub, backbone, mainspring, engine or just the very brain of analogical reasoning is intuition or, more accurately, intuitive thinking”[41], “analogy is the application of a trained, disciplined intuition where the manifold of particulars is too extensive to allow our minds to work on it deductively. This is not a denial of reason; on the contrary, it is a civilized attempt to stretch reason as far as it will go”[42].
In the UK, Zenon Bańkowski seems to link legal reasoning to legal analogy which is – according to him – based upon imagination that operates within legal tradition, “with its interlocking network of principles, rules etc.,” and thereby it “loses its capacity to surprise, radically to change direction, to transcend”[43]. Rupert Cross in turn states here that: “The reader must be on his guard against concluding that the procedure discussed in connection with reasoning by analogy is in any sense one which the judge is obliged to follow according to the doctrine of precedent. Decisions in perfect compliance with that doctrine and of indubitable excellence so far as their social consequences are concerned are no doubt often reached intuitively, and to this extent the realists have drawn attention to an important feature of the judicial process”[44].
References[edit]
- ↑ 1.0 1.1 1.2 "Legal Reasoning | Encyclopedia.com". www.encyclopedia.com.
- ↑ Andrzej Grabowski, Judicial Argumentation and Pragmatics. A Study on the Extension of the Theory of Legal Argumentation, Cracow 1999.
- ↑ Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking, 3rd ed., National Institute for Trial Advocacy: 1997
- ↑ 4.0 4.1 Chaïm Perelman and Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation, University of Notre Dame Press: Notre Dame 1969
- ↑ Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning, Oxford University Press: Oxford 2005
- ↑ 6.0 6.1 6.2 Bartosz Brożek and Jerzy Stelmach, Methods of Legal Reasoning, Springer: Dordrecht 2006.
- ↑ Jerzy Wróblewski, The Judicial Application of Law, Kluwer Academic Publisher: Dordrecht 1992.
- ↑ Robert Alexy, Theorie der juristischen Argumentation, Frankfurt am Main 1978.
- ↑ Michał Araszkiewicz, Balancing of Legal Principles and Constraint Satisfaction, [in:] Legal Knowledge and Information Systems. JURIX: the Twenty-Third Annual Conference, ed. R.G.F. Winkels, IOS Press: Amsterdam 2010, pp. 7-16.
- ↑ Larry Alexander and Emily Sherwin, Demystifying Legal Reasoning, Cambridge University Press: Cambridge 2008, pp. 9-127.
- ↑ Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle 2019.
- ↑ Bartosz Brożek, Rationality and Discourse: Towards a Normative Model of Applying Law, a Wolters Kluwer business: Warsaw 2007, 98-157.
- ↑ Maciej Koszowski, Intricacies, Fallacy and Madness of Legal Deduction. Archiv für Rechts- und Sozialphilosophie no. 4/2017, pp. 494-503.
- ↑ Bartosz Brożek, Analogy in Legal Discourse. Archiv für Rechts- Und Sozialphilosophie no. 2/2008, pp. 188-201.
- ↑ Richard A. Posner, The Problems of Jurisprudence, Harvard University Press: Cambridge 1990
- ↑ Douglas Walton, Informal Logic: A Pragmatic Approach, 2nd ed., Cambridge University Press: Cambridge 2008.
- ↑ Legal Knowledge and Analogy. Fragments of Legal Epistemology, Hermeneutics and Linguistics, eds. Patrick Nerhot, Kluwer Academic Publishers: Dordrecht 1991.
- ↑ Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument, Cambridge University Press: Cambridge 2005.
- ↑ See Rupert Cross, Precedent in English Law, 2nd ed., The Clarendon Press: Oxford 1968
- ↑ Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, translated by Ruth Adler and Neil MacCormick, Oxford University Press: Oxford 1989.
- ↑ See Michael J. Saks, Barbara A. Spellman, The Psychological Foundations of Evidence Law, New York University Press 2016.
- ↑ Maciej Koszowski, Why Does Legal Reasoning Have to Be Unique?. The Indonesian Journal of International & Comparative Law no. 3/2016, pp. 555-575.
- ↑ Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle 2019, pp. 63-107.
- ↑ Michael J. Saks, Barbara A. Spellman, The Psychological Foundations of Evidence Law, New York University Press: New York 2016.
- ↑ Aleksander Peczenik, On Law and Reason, 2nd ed., Springer Science+Business Media: 2009, p. 278.
- ↑ See Bartosz Brożek, Rationality and Discourse: Towards a Normative Model of Applying Law, a Wolters Kluwer business: Warsaw 2007.
- ↑ Bartosz Brożek and Jerzy Stelmach, Methods of Legal Reasoning, Springer: Dordrecht 2006, pp. 167-210.
- ↑ See Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle 2019, pp. 135-138.
- ↑ Cass R. Sunstein, Legal Reasoning and Political Conflict, Oxford University Press: New York 1996, p. 94.
- ↑ Martin P. Golding, Legal Reasoning, Broadview Press: Peterborough 2001, p. 1.
- ↑ Maciej Koszowski, Why Does Legal Reasoning Have to Be Unique?. The Indonesian Journal of International & Comparative Law no. 3/2016, p. 574.
- ↑ Keith J. Holyoak and Paul Thagard, Mental Leaps: Analogy in Creative Thought, The MIT Press: Cambridge 1996, p. 149.
- ↑ Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument, Cambridge University Press: Cambridge 2005, p. 4.
- ↑ Cass R. Sunstein, Legal Reasoning and Political Conflict, Oxford University Press: New York 1996, p. 99
- ↑ Douglas Walton, Informal Logic: A Pragmatic Approach, 2nd ed., Cambridge University Press: Cambridge 2008, p. 312.
- ↑ Edward H. Levi, An Introduction to Legal Reasoning, The University of Chicago Press: Chicago 1949, p. 1.
- ↑ Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, Harvard Law Review vol. 109 no. 5 (1996), p. 926.
- ↑ Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle 2019, pp. 23-62.
- ↑ Bartosz Brożek, Analogy in Legal Discourse. Archiv für Rechts- Und Sozialphilosophie no. 2/2008, pp. 188.
- ↑ Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument, Cambridge University Press: Cambridge 2005, p. 12.
- ↑ Maciej Koszowski, Analogical Reasoning in Law, Cambridge Scholars Publishing: Newcastle 2019, p. 63.
- ↑ Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, Texas Law Review vol. 60 (1981), p. 57.
- ↑ Zenon Bańkowski, Analogical Reasoning and Legal Institutions, [in:] Legal Knowledge and Analogy: Fragments of Legal Epistemology, Hermeneutics and Linguistics, ed. Patrick Nerhot, Kluwer Academic Publishers: Dordrecht 1991, pp. 198-216.
- ↑ Rupert Cross, Precedent in English Law, 2nd ed., The Oxford University Press: Oxford 1968, p. 176.
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