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)|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
A Theory of Legal Reasoning and a Logic to Match.Jaap Hage - 1996 - Artificial Intelligence and Law 4 (3-4):199-273.
The Rules of Law in the Reform of Legal Education: Teaching the Legal Mind in Japanese Law Schools.James R. Maxeiner - unknown
Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View.Aldo Schiavello - 2011 - Ratio Juris 24 (2):140-155.
Rhetoric and the Rule of Law: A Theory of Legal Reasoning.Neil MacCormick - 2005 - Oxford University Press.
Added to index2009-01-28
Total downloads42 ( #124,853 of 2,177,988 )
Recent downloads (6 months)2 ( #166,811 of 2,177,988 )
How can I increase my downloads?