Criticizing and Constructing Accounts of Legal Reasoning

Abstract

What are accounts of legal reasoning supposed to be? How are we to determine whether or not they are successful? What are we to make of the fact that both proponents and critics of such accounts indiscriminately and simultaneously describe them as either 'theories' or 'models' or 'descriptions' of judicial practice: are these words indeed synonyms, as this usage would suggest, or do they mark out significantly different enterprises? It is surprising but true that thought about adjudication often proceeds without ever directly facing these questions. Here I offer an answer to them based upon consideration of: (i) one prevalent strategy of criticism of accounts of legal reasoning; and (ii) the understanding of the nature of the enterprise of constructing accounts of legal reasoning offered by proponents of two such accounts. The number of writers from which examples of the former strategy are drawn is a large one, although when speaking specifically there are only two targets at which their criticism is aimed, namely, the accounts of legal reasoning offered by Neil MacCormick and Ronald Dworkin. It is therefore pleasingly symmetrical that both authors' descriptions of the nature of the enterprise of constructing accounts of legal reasoning are the basis of some of what follows.