Online research in philosophy

The articles in this volume consider at what stage of legal reasoning should a judge or lawyer make specifically moral judgments.

Many legal theorists have argued that analogical reasoning is merely rule-following in which the general rule is not stated. Lloyd Weinreb's tries to defend the practice of analogical reasoning on its own terms. He does so by giving examples of the way people use analogical reasoning, both in legal and non-legal contexts, as a means for deciding how to act in particular circumstances. By itself such evidence does not support Weinreb's case, because to justify analogy he must show that analogical reasoning can somehow lead us to correct answers. Moreover, his evidence does nothing to challenge the claim that analogical reasoning is simply following suppressed rules.I try to give Weinreb a helping hand. I use the data he mentions that people actually reason by analogy as a starting point for a novel justificatory account of analogical reasoning based on the notion of reliable results: a process of reasoning is reliable, and therefore reliance on it justified, if it tends to generate correct results. This requires explaining what counts as correct results in law, which is a question of political philosophy. I show that the most fundamental condition for the acceptability of analogical reasoning is that the standard of legal correctness is not determined by principles derived by Reason (as is the approach in the civil law tradition) but rather by a standard of acceptance (more prevalent in the common law tradition). Nonetheless, I argue that there two other conditions - shared social values and skepticism about the possibility of discovering the right normative foundations to legal questions - that together have to obtain in order to justify reliance on analogical reasoning. Since that in a modern society it is unlikely that these two conditions are not likely to obtain, I conclude that even this sympathetic reconstruction of Weinreb's argument ultimately fails.

This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legal reasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.

Legal argumentation, like argumentation generally, occurs against a background of shared understanding and competence. This view, inspired by Kuhn's understanding of scientific reasoning, is in stark contrast to more traditional ‘rule-following’ accounts of legal argumentation. Below I consider reasons to reject the more traditional view of legal reasoning in favor of a roughly Kuhnian account of legal reasoning and conclude by raising skeptical questions about the cogency of legal reasoning when the tacitly accepted background conditions that make it possible are not critically examined.

Jurisprudential debate about the grounds of law often focuses on the status of morality. Given the undoubted fact of judicial engagement with morality in legal reasoning, the key question is whether morality legitimately counts as a ground of law. This article seeks to challenge the special status accorded to morality in debates about the grounds of law. The claim I seek to advance is that very often judicial engagement with morality is not different in kind to judicial engagement with other diverse objects of legal reasoning. What the comparison tends to show is that instances of “moral reasoning” in law do not obviously challenge our account of the grounds of law. Rather these instances can be viewed as central case examples of legal reasoning. Conventional grounds of law are left untouched.

Legal reasoning is not the same as the reasoning in mathematics or the physical sciences. It is like them. Specifying the likeness in more detail, and deciding whether there is more likeness than unlikeness, are the kinds of tasks that legal reasoning is better adapted to do than mathematical or scientific reasoning.

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.

This paper describes a model of legal reasoning and a logic for reasoning with rules, principles and goals that is especially suited to this model of legal reasoning. The paper consists of three parts. The first part describes a model of legal reasoning based on a two-layered view of the law. The first layer consists of principles and goals that express fundamental ideas of a legal system. The second layer contains legal rules which in a sense summarise the outcome of the interaction of the principles and goals for a number of case types. Both principles, goals and rules can be used in legal arguments, but their logical roles are different. One characteristic of the model of legal reasoning described in the first part of the paper is that it takes these logical differences into account. Another characteristic is that it pays serious attention to the phenomena of reasoning about the validity and acceptance of rules, respectively principles and goals, and about the application of legal rules, and the implications of these arguments for the use of rules, principles and goals in deriving legal conclusions for concrete cases.The second part of the paper first describes a logic (Reason-Based Logic) that is especially suited to deal with legal arguments as described in terms of the previously discussed model. The facilities of the logic are illustrated by means of examples that correspond to the several aspects of the model.

This article deals with the relation between a theory of law and a theory of legal reasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legal reasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them.