Legal Reasoning: In Search of an Adequate Theory of Argument

Abstract

The proposition that every lawyer and judge engages in legal reasoning from time to time seems uncontroversial enough; surely some of them do it often. It is therefore rather surprising that no one has yet satisfactorily explicated the nature of this process. The attractiveness of many received conceptions of the process has diminished considerably as a modicum of careful analysis has finally been brought to bear on the problem in the last ten years. However, no unified theory has emerged to replace the older views, and it appears that legal philosophers are far from agreed on the general form such a theory might take. The central confusion in recent discussions of the concept of legal reasoning has been the claim that a special new form of reasoning is employed in this discipline. Modem commentators have based their approaches to this topic on the belief that this new mode of thought, sometimes labelled "zetetic reasoning," is nonstringent; that is, that the conclusions drawn do not necessarily follow from the premises.' These commentaries on the reasoning process, however, blur together two fundamentally different issues: the degree to which the conclusion of an argument is necessitated by its premises, and the degree to which the choice of a legal position on some question is necessitated by arguments (however formulated). Modem writers appear to have concluded that because we rarely can say that a given chain of reasoning demands a specified legal posture (in the sense that consideration of altemative outcomes would be superfluous), the arguments employed must not entail their conclusions. Thus, it is almost uniformly believed that something other than what might be called classic deductive argumentation is involved in legal reasoning. 2 This Comment examines the claim that nondeductive argument plays any significant part in the process of legal reasoning. It offers a theory of legal reasoning as a wholly deductive enterprise which can still take account of the evident inability of legal arguments in many

Designing as a Court of Law

“…From the 19th century onwards, the mainstream assumption has been that legal rules and decisions are deduced directly from legislation, previous cases, and secondary authorities (Sinclair 1971). Thus, legal reasoning has been seen to primarily fall into the realm of logic.…”

The ‘mirror of evidence’ and the plausibility of judicial proof

“…When the litigating parties strive to influence their opponents, they themselves are, either voluntarily or involuntarily, affected by their opponents. On the other hand, ‘the judge also engages in argument.…[T]he judge argues for the position taken’ (Sinclair, 1971: 825). This is so because it is an important mission for the judge to justify his final conclusion.…”