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Essays On The Nature Of Law And Legal Reasoning

To say that legal reasoning cannot be reduced to the classical rules of formal logic is not, however, to deny that it has logical qualities.

It is characteristic of legal reasoning that it strives toward consistency both of legal rules and of legal judgments; such a striving for consistency is implicit in the belief that law should apply equally to all who are subject to it and that like cases should be decided in a like manner.

The main tenet that this article aims to establish is that judicial virtue is necessary for successful legal interpretation.

Theories of interpretation are exceedingly useful devices to guide and assess judicial reasoning, but they are limited in that the soundness of their outcomes is dependent upon the possession and exercise of judicial virtue.

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.It was supposed by many that if the entire body of law could be summarized in a set of rules, the sole remaining task of law would be to classify particular facts under one rule or another.This mechanical model of the application of rules to facts did not go unchallenged even in its heyday.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.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.Thus legal rules are continually being made and remade.Also the “minor premises”—the facts of particular cases or the terms of particular legal problems —are not simply “there” but must be perceived and characterized, and this, too, requires interpretation and evaluation.The life of the law has not been logic; it has been experience, Holmes stated in 1881.By “logic” Holmes indicated he meant “the syllogism” and “the axioms and corollaries of a book of mathematics” by “experience” he meant “considerations of what is socially expedient.”However useful syllogistic logic may be in testing the validity of conclusions drawn from given premises, it is inadequate as a method of reasoning in a practical science such as law, where the premises are not given but must be created.In Germany, Rudolf von Jhering ridiculed a “jurisprudence of concepts” (Begriffsjurisprudenz) and called for a conscious legal policy of evaluating the social and personal interests involved in the legal resolution of conflicts (Interessenjurisprudenz).Similarly, in the United States, Oliver Wendell Holmes, Jr., in some of his writings, viewed the logical form in which judges announced their conclusions as a veil covering their views of public policy.


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