David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
This paper examines the received review of legal reasoning. This received view is articulated as the rule of law as it applies to judicial reasoning. The rule of judge-made law means that legal reasoning is rule-based. Problematically, judicial reasoning employs tools outside established legal rules and, furthermore, these tools depend on values that lack rational justification. The received view of legal reasoning therefore seems wrong. A number of legal theorists take the rejection of legal rationalism as proof that law is not a rational enterprise. I argue, however, that merely because legal rationalism is a wrong theory of jurisprudence does not suggest that law is not a rational enterprise. Notwithstanding this argument, if the received view of legal reasoning cannot sufficiently account for its own legitimacy, then the rule of law seems threatened. If the rule of law is something we take as important and meaningful, a better theory of the legitimacy of legal reasoning is needed.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Jaap Hage (1996). A Theory of Legal Reasoning and a Logic to Match. Artificial Intelligence and Law 4 (3-4):199-273.
Scott Shapiro (2011). Legality. Harvard University Press.
David T. Ritchie (2008). Mastering Legal Analysis and Communication. Carolina Academic Press.
James R. Maxeiner, The Rules of Law in the Reform of Legal Education: Teaching the Legal Mind in Japanese Law Schools.
Amalia Amaya (2011). Legal Justification by Optimal Coherence. Ratio Juris 24 (3):304-329.
Aldo Schiavello (2011). Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View. Ratio Juris 24 (2):140-155.
Kurt Nutting (2002). Legal Practices and the Reason of the Law. Argumentation 16 (1):111-133.
F. Atria (1999). Legal Reasoning and Legal Theory Revisited. Law and Philosophy 18 (5):537-577.
Neil MacCormick (2005). Rhetoric and the Rule of Law: A Theory of Legal Reasoning. Oxford University Press.
Added to index2009-01-28
Total downloads37 ( #109,125 of 1,796,448 )
Recent downloads (6 months)4 ( #206,825 of 1,796,448 )
How can I increase my downloads?