Essays On The Nature Of Law And Legal Reasoning

Essays On The Nature Of Law And Legal Reasoning-66
Thus legal rules are continually being made and remade.

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Law, insofar as it has a distinctive subject matter and is founded on distinctive principles and purposes, has not only its own kinds of logic but also its own kinds of rhetoric and its own kinds of discourse, which are, of course, similar to the logic, rhetoric, and discourse of other social institutions and other scholarly disciplines but which nevertheless have certain distinctive characteristics.

In seeking to identify these distinctive characteristics, we must keep in mind that legal reasoning is not identical in all societies and that, in addition, the degree of its distinctiveness is not identical in all societies.

Legal logic Many Western jurists of the eighteenth and nineteenth centuries sought to make legal reasoning conform to syllogistic logic.

The rules of law declared by legislatures, courts, and legal scholars were viewed as major premises, and the fact situations of particular cases or the terms of particular legal problems were viewed as minor premises.

These variations strongly suggest that in any society there is an intimate connection between the logic, rhetoric, and discourse of law and the dominant beliefs of the society concerning religion, politics, and other aspects of social life, including its beliefs about the nature of reasoning itself.

Legal reasoning seems to be most distinctive in those societies that have experienced the emergence of a special professional class of lawmen, with its own special professional traditions and institutional values; here special modes of logic, rhetoric, and discourse seem to have as part of their functions the preservation and further development of the legal profession’s traditions and values, although at the same time even in such societies the intimate connections between legal reasoning and other types of reasoning must be maintained if the legal profession is to retain the respect of the community as a whole.Legal rules, viewed as major premises, are always subject to qualification in the light of particular circumstances; it is a rule of English and American law, for example, that a person who intentionally strikes another is civilly liable for battery, but such a rule is subject, in legal practice, to infinite modification in the light of possible defense (for example, self-defense, defense of property, parental privilege, immunity from suit, lack of jurisdiction, insufficiency of evidence, etc.).In addition, life continually presents new situations to which no existing rule is applicable; we simply do not know the legal limits of freedom of speech, for example, since the social context in which words are spoken is continually changing.It was supposed by many that if the entire body of law could be summarized in a set of rules, the sole remaining task of law would be to classify particular facts under one rule or another.This mechanical model of the application of rules to facts did not go unchallenged even in its heyday.Next, it sketches a preliminary account of the kinds of character traits that are necessary for virtuous adjudication.Finally, the essay concludes by explicating the main elements—which are needed to arrive at justified judicial decisions but that no theory of interpretation may supply—that a virtuous judge brings to the process of legal interpretation.When legal reasoning is conceived of in these broader terms, it is seen to involve not only, and not primarily, the application of rules of formal logic but also other methods of exposition.To reason, according to dictionary definitions, may mean to give grounds (reasons) for one’s statements, to argue persuasively, or to engage in discourse.Even the judgments of the ancient Greek oracles were believed to reflect a hidden consistency.It is also characteristic of legal reasoning that it strives toward continuity in time; it looks to the authority of the past, embodied in previously declared rules and decisions, and it attempts to regulate social relations in such a way as to preserve stability.


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