For Dworkin, then, it is these features of the social practice of law: The facts of a legal case do not have an existence independent of the theory of liability applied to them. Butterworths, at ; Benjamin N. Even the judgments of the ancient Greek oracles were believed to reflect a hidden consistency.
These considerations may also seem to speak mainly to the issue of how we are to go about interpreting aspects of the law. Thus legal rules are continually being made and remade.
As was noted in subsection 2. 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.
While decisions of co-ordinate courts are not binding, these decisions are highly persuasive. Moreover, the second step—the extraction of the principle of the previous case—is complicated by the fact that the principle expressly relied on by the court in deciding the previous case is not necessarily binding upon future courts.
The rule is rather that the court may decide which one of the conflicting decisions to follow. Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X.
Rosenstock-Huessy, Eugen Soziologie. To get Judicial reasoning and decisions an apparently unfavourable case, there are a number of tools and techniques available to the lawyer.
But, in my view, liberty to decide each case as you think right, without regard to principles laid down in previous similar cases, would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he knew before what Judge his case would come and could guess what view that Judge would take on a consideration of the matter, without any regard to previous decisions.
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. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.
At times, the justices voting for a majority decision e. Such an approach raises many questions, such as how these various criteria of coherence are to be weighed and balanced against each other, and whether it is always the case that the weighing operation will result in a complete ranking of given sets of propositions as either more or less coherent than each other, so that when faced with competing such sets, it is always possible to find the most coherent set of propositions according to the ten criteria.
Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.
This kind of argument does not purport to extend or develop the law; rather, the sense of it is just the opposite. In case of discrepancies between the print and electronic versions of a slip opinion, the print version controls.
Pointing out that reasoning by analogy is not a necessary fact of life in all legal systems, and that, even where it does feature, it is still necessary to provide an explanation of the rationale of arguments from analogy, and the links between such arguments and coherence accounts of adjudication, Raz seeks to shift the burden of proof onto those who champion coherence.
This understanding requires, in important part, skill in navigating the processes of inductive reasoning — the methods of analogy and inductive generalization — by which inferences are drawn on the basis of past experience and empirical observation.
Raz b claims that the primary objects of interpretation are the decisions of legal authorities. However, just locating and evaluating the prospects of precedent cases is not easy since it is often difficult to determine and articulate the authority of a case.
There are thus three things at least, there may be others which legal theorists could mean by legal reasoning: The formalities of the hearing help to secure its objectivity, that is, its impartiality, internal consistency, restraint, and authority.
She contrasts her understanding of this requirement with that adopted by MacCormick Since, as we shall see, both these types of reasoning are closely related to each other, we would define legal reasoning broadly enough to include them both; and indeed, we propose to broaden the definition still further to include also the types of reasoning used in other kinds of legal activity, such as making laws, administering laws, the trial and not merely the decision of cases in court, the drafting of legal documents, and the negotiation of legal transactions.
For law the method of analogy has the special virtue—as compared with syllogistic reasoning— of exposing the examples by which consistency, continuity, and the weighing of opposing claims and defenses are tested.
This may seem like an easy question, for surely legal reasoning is simply reasoning about the law, or about how judges should decide cases.
Alexy and Peczenik define coherence in terms of the degree of approximation to a perfect supportive structure exhibited by a set of propositions, and list ten criteria by reference to which coherence thus defined can be evaluated the criteria are: However, recent sociological studies of the professions have, following Weber, related legal reasoning to the need of the legal profession to have its own professional language; and in the last two decades many American political scientists have attempted to debunk legal reasoning as a disguise for judicial decisions reached on the basis of non-legal considerations.
See Cardozo, supra, note 4 at That said, more difficult problems of legal reasoning and legal argument occur when the lawyer is unable to find a close case or any case at all or, worse yet, when a case presents itself which appears to be unfavourable.
This Judicial reasoning and decisions is concerned with legal reasoning in senses a and band with sense b in particular. The specific, unique qualities of the dispute are named in general terms.However, recent sociological studies of the professions have, following Weber, related legal reasoning to the need of the legal profession to have its own professional language; and in the last two decades many American political scientists have attempted to debunk legal reasoning as a disguise for judicial decisions reached on the basis of non.
JUDICIAL REASONING AND POLITICS 10 INTRODUCTION The popular perception of the judicial process is described by David Kairys as govern-ment by law, not people, together with the understanding that law is separate from, and. Chapter 1: What Legal Reasoning Is, and Why It Matters Legal reasoning is the way lawyers and judges talk publicly about the law.
This legal language gives us the tools to tell the difference between impartial and partisan legal decisions. The possibility that judges will influence the content of law even in a system of analogical reasoning, or perhaps because of the system, is a valid criticism of judicial decision making.
Judges may be criticised for failing to reflect normative or social values. All Ontario provincial courts lower than the Court of Appeal are bound to follow a decision of the Ontario Court of Appeal. 22 A Divisional Court decision as a decision of an intermediate court of appeal would bind lower courts.
(It should be noted that the Divisional Court also sits as a court of first instance.). The above is an excerpt from Professor Douglas Lind’s book, Logic and Legal Reasoning (2nd ed., The National Judicial College Press, ).
Lind, who is a professor in the Department of Philosophy at the University of Idaho in Moscow as well as an attorney, teaches the logic portion of The NJC’s Logic and Opinion Writing killarney10mile.com logic portion of the course is a two-day immersion into.Download