The Problematic Nature of Discovery and Justification

Abstract

Contemporary studies of legal reasoning are primarily concerned with analysing how judicial decisions are justified. They stress the logical, rational, “objective” nature of the process of legal justification.1 Legal theorists who study legal reasoning in this context accept that there is, and should be, a “rigid” distinction between the process of discovery (how a judge “actually” reaches a tentative decision) and the process of justification (how a judge publicly justifies a decision).2 The “actual” process followed by a judge to invent or discover a solution to a case is a distinct and independent process that is considered relatively unimportant compared to the process of publicly justifying a judicial decision by supporting reasons and arguments. These theorists assert that the proper subject matter of their investigations is legal justification, not discovery. Some theorists even claim that the process of discovery cannot, even should not, be analysed by legal scholars. They classify the discovery process as a psychological, not a legal, matter that should be left to psychologists.3