Essays on the nature of law and legal reasoning

In countries like France and Germany, on the other hand, where thought about law has focused primarily on codification—that is, the creation of a complex and harmonious body of legal rules and concepts —legal reasoning is often identified with the intellectual processes by which the rationality and consistency of legal doctrines are maintained and justified.

Essays on the nature of law and legal reasoning

This may seem like an easy question, for surely legal reasoning is simply reasoning about the law, or about how judges should decide cases.

On closer inspection, however, our ease may evaporate, for both of these formulations are ambiguous, at least according to some ways of thinking about the law. That is to say, their accounts of law and their accounts of adjudication are not one and the same, and they contend that in settling disputes which come before them, the remit of judges is wider than merely trying to establish what the law is as regards the issues in the case at hand.

In adjudication, such theorists claim, extra-legal considerations can come into play, and judges may have discretion to modify existing law or to fill in gaps where existing law is indeterminate. This being so, for some legal theorists, the first formulation above, that legal reasoning is reasoning about the law, is ambiguous between: Moreover, the second formulation of the ambit of legal reasoning given above, i.

This possibility is also noted by Dworkinchapter 3, —, in discussing whether the Nazis had law. There are thus three things at least, there may be others which legal theorists could mean by legal reasoning: It should be noted that some legal theorists, most notably for present purposes Ronald Dworkin, do not carve up the questions and issues on this topic in the way outlined above.

For Dworkin, when judges decide a case according to law, they do no more than ascertain the content of the law and apply it to the facts of the case.

Essays on the nature of law and legal reasoning

In other words, judges never resort to extra-legal considerations in deciding cases according to law: This means that, according to Dworkin, when judges reason about the law in sense bwhat they are doing amounts to no more nor less than reasoning about the law in sense ai.

This entry is concerned with legal reasoning in senses a and band with sense b in particular. It should be noted that the discussion does not directly address the different accounts of the nature and limits of law which are revealed by those varying views mentioned above regarding what it is that judges do when they reason about the law in sense b.

Where such differences have a bearing upon issues pertaining to the role of interpretation and coherence in legal reasoning, they will be mentioned in the text.

For further discussion of the nature and limits of law, see various entries under nature of law in this volume. Marmor and the revised edition of that work, Marmor ; Stone ; Smith Certain aspects of this trend, most notably that of academic lawyers employing ill-digested Wittgenstein to dubious ends, are criticised by Bix According to this line of thinking, if words, and legal rules composed of words, have no intrinsic meaning and hence cannot, in and of themselves, constrain legal reasoning, then it must be we—readers or interpreters—who supply such meaning via the process of interpretation see Fish ; Cornell Stone criticises this understanding of the role of interpretation in legal reasoning, but notes its adoption by various legal theorists.

In the case of other theorists, interest in this topic stems from a wish to investigate the parallels and divergences between interpretation in law and interpretation in literature Levinson ; Dworkin ; Fish In some jurisdictions academic and public interest in interpretation in legal reasoning may have been sparked by changes in particular legal arrangements: Conservation and Creativity As might be expected, as a result of these different although often intertwining intellectual backgrounds and sources of interest in interpretation, legal theorists approach this subject with very different questions and concerns to which they give concomitantly different answers.

For all this, however, a surprising number of legal theorists agree—at least at an abstract level—about one central characteristic of interpretation, namely that interpretation is a Janus-faced concept, encompassing both a backward-looking conserving component, and a forward-looking creative one.

Essays on the nature of law and legal reasoning /

In other words, an interpretation of something is an interpretation of something—it presupposes that there is a something, or an original, there to be interpreted, and to which any valid interpretation must be faithful to some extent, thus differentiating interpretation from pure invention—but it is also an interpretation of something, i.

Some theorists claim that such concerns about how one ought to interpret the law indicate that it is part of the way that we think about this practice that we regard rival interpretations as subject to objective evaluation as good or bad, better or worse, correct or incorrect Dworkin ; Raz b and c.

On this view, characterisations of interpretation which attempt to impugn the objectivity of such evaluations e. Levinson are to be understood as revisionist accounts which attempt to persuade us that all is not as it appears to be with our practice of judging interpretations to be good or bad, better or worse, correct or incorrect as we currently understand it see e.

This dualism would seem to indicate that in interpreting the law, judges both seek to capture and be faithful to the content of the law as it currently exists, and to supplement, modify, or bring out something new in the law, in the course of reasoning from the content of the law to a decision in a particular case.

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In turn, this would seem to indicate that interpretation, because of its dualistic nature, has a role to play in both legal reasoning in sense ai.As the logical aspect of legal reasoning focuses attention on legal rules and on the principles to be derived from decisions in analogous cases, so the rhetorical aspect of legal reasoning focuses attention on legal activities.

As many writers have emphasized, law itself is not simply, or primarily, a body of rules but an activity, an enterprise. Thinking about law: perspectives on the history, philosophy and sociology of law / edited by Rosemary Hunter, Richard Ingleby, and Richard Johnstone K T45 Thinking through the body of the law / edited by Pheng Cheah, David Fraser and Judith Grbich.

Essays on the nature of law and legal reasoning (Schriften zur Rechtstheorie) [Robert S Summers] on *FREE* shipping on qualifying offers. Rare Book Essays on the nature of law and legal reasoning (Schriften zur Rechtstheorie) Perfect Paperback – The Nature of Law Chapter One.

The Technique Element in Law 13 Chapter Two. Toward a Better Theory of Legal Validity 31 Chapter Three.

Essays on the nature of law and legal reasoning

Positivism, Natural Law, and the Theory of Legal Validity.. 49 Chapter Four. Naive Instrumentalism and the Law 55 Chapter Five. Pragmatic Instrumentalism and American Legal Theory . 67 Chapter Six. Legal reasoning is fertile ground for the study of argumentation: it is to the new rhetoric what mathematics is to formal logic and to the theory of demonstrative proof.

It is important, then, that philosophers should not limit their methodologi­ cal studies to mathematics and the natural Essays on the Nature of Law and Legal Reasoning. About us. Editorial team. General Editors: David Bourget (Western Ontario) David Chalmers (ANU, NYU) Area Editors: David Bourget Gwen Bradford Berit Brogaard Margaret Cameron David Chalmers James Chase Rafael De Clercq Ezio Di Nucci Barry Hallen Hans Halvorson.

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