The Qualities of Lady Hale’s Legal Reasoning

Bayesian approaches to legal reasoning propose causal models of the relation between evidence, the credibility of evidence, and ultimate hypotheses, or verdicts. They assume that legal reasoning is the process whereby one infers the posterior probability of a verdict based on observed evidence, or facts. In practice, legal reasoning does not operate quite that way. Legal reasoning is also an attempt at inferring applicable rules derived from legal precedents or statutes based on the facts at hand. To make such an inference, legal reasoning follows syllogistic logic and first order transitivity. This paper proposes a Bayesian model of legal syllogistic reasoning that complements existing Bayesian models of legal reasoning using a Bayesian network whose variables correspond to legal precedents, statutes, and facts. We suggest that legal reasoning should be modelled as a process of finding the posterior probability of precedents and statutes based on available facts.

In this paper, stimulated by the publication some years ago in France of a small book on medical reasoning, legal and medical reasoning are compared. The question that is asked is whether the differences between the two types of reasoning will permit one to have a better understanding of some of the methodological and epistemological issues associated with legal reasoning. It will be argued that although medical and legal reasoners do share things in common, legal reasoning, perhaps unlike medical reasoning, is actually concerned less with the explanation or even comprehension of texts or the facts of a dispute (explicatio causæ) and more with what will be termed the ‘manipulation’ of facts (accommodatio factorum). Lawyers purify and (or) construct ‘virtual’ factual situations out of perceived ‘actual’ factual situations in order to make them conform or not conform in an isomorphic way with factual situations implied by a legal text or precedent. Medical reasoning is equally complex but facts are read in a different way.

Legal socialization theory predicts that attitudes mediate the relation between legal reasoning and rule-violating behavior [Cohn, E. S., & White, S. O. (1990). Legal Socialization: A Study of Norms and Rules. New York: Springer-Verlag]. Moral development theory predicts that moral reasoning predicts rule-violating behavior directly as well as indirectly [Blasi, A. (1980). Bridging moral cognition and moral action: A critical review of the literature. Psychological Bulletin, 88, 1-45]. We present and test an integrated model of rule-violating behavior drawing on both theories in a longitudinal study of middle school and high school students. Students completed questionnaires three times during the course of 1 year at 6-month intervals. Legal and moral reasoning, legal attitudes, and rule-violating behavior were measured at times one, two, and three respectively. Structural equation models revealed that while moral and legal reasoning were directly and indirectly related to rule-violating behavior among high school students, legal reasoning bore no direct relation to rule-violating behavior among middle school students. The implications for an integrated model of reasoning and rule-violating behavior are discussed.

LEGAL ARGUMENTS AND REASONING IN THE CONSTITUTIONAL LAW-GOVERNED STATE: THE COMMENTARY The interdisciplinary research on legal argumentation presented in this volume, entitled Legal Arguments and Reasoning in the Constitutional Law-governed State: The Commentary (edited by Monika Florczak-Wątor and Andrzej Grabowski), is primarily inspired by the theory of constitutional law-governed state developed in Italy, Spain, and Latin American countries, by scholars proposing doctrines of positivist or postpositivist constitutionalism and neoconstitutionalism. As explained by Andrzej Grabowski in the “Introduction” [pp. 23–29], the theory is focused first and foremost on legal reasoning as it is conducted in the process of judicial law application and with particular stress on how it is affected by constitutional norms and values. Legal theory on its own does not seem to possess sufficient means to examine legal reasoning in constitutional law-governed states adequately—such an endeavour might be done far better with the help of dogmatics of constitutional law. Hence, this commentary on 91 arguments, topoi, and legal reasoning schemata result from the research team’s joint efforts composed of 18 legal theorists and constitutionalists.

LEGAL ARGUMENTS AND REASONING IN THE CONSTITUTIONAL LAW-GOVERNED STATE: THE COMMENTARY The interdisciplinary research on legal argumentation presented in this volume, entitled Legal Arguments and Reasoning in the Constitutional Law-governed State: The Commentary (edited by Monika Florczak-Wątor and Andrzej Grabowski), is primarily inspired by the theory of constitutional law-governed state developed in Italy, Spain, and Latin American countries, by scholars proposing doctrines of positivist or postpositivist constitutionalism and neoconstitutionalism. As explained by Andrzej Grabowski in the “Introduction” [pp. 23–29], the theory is focused first and foremost on legal reasoning as it is conducted in the process of judicial law application and with particular stress on how it is affected by constitutional norms and values. Legal theory on its own does not seem to possess sufficient means to examine legal reasoning in constitutional law-governed states adequately—such an endeavour might be done far better with the help of dogmatics of constitutional law. Hence, this commentary on 91 arguments, topoi, and legal reasoning schemata result from the research team’s joint efforts composed of 18 legal theorists and constitutionalists.

Interpretation and Law - Why is Interpretation Important for Law: Ronald Dworkin (1994) Law, Philosophy and Interpretation Joseph Raz (1996) Why Interpret. Interpretation and Legal Reasoning - Law and Morality: Michael Detmold (1989) Law as Practical Reason Fernando Atria (1999) Legal Reasoning and Legal Theory Revisited Michael Moore (1985) A Natural Law Theory of Legal Interpretation. Interpretation and Application of Legal Rules, Vagueness and Defeasibility: Robert Alexy (1993) Justification and Application of Norms Gunther Klaus (1993) Critical Remarks on Robert Alexy's Spcial Case Thesis Zenon Bankowski (1996) Law, Love and Computers Carlos Alchourron (1996) On Law and Logic. Legal Interpretation and Politics: Roberto Unger (1996) Legal Analysis as Institutional Imagination Emilios Christodoulidis (1996) The Inertia of Institutional Imagination - A Reply to Roberto Unger. Interpretation and Objectivity: Charles Yablon (1987) Law and Metaphysics Jes Bjarup (1988) Kripke's Case Stanley Fish (1989) Working in the Chain Gang, reprinted in Fish, Doing What Comes Naturally. Interpreting the Law: M. Van Dunne (1998) Normative and Narrative Coherence in Legal Decision-Making Jerzy Worblewski and Neil MacCormick (1994) Justification and Interpretation Aleksander Peczenik (1988) Authority Reasons in Legal and Moral Reasoning Robert Summers (1978) Two Types of Substantive Reasons Neil MacCormick (1999) Reasonableness and Objectivity.

Introduction: Civil Procedure Law is a legal regulation that regulates how to ensure compliance with material civil law through the mediation of a judge. If there is a person or several people who feel that their rights have been violated or have caused harm to them, then they can file a claim for their rights through the court. Objective: This research aims to know, understand, and discover the nature of legal reasoning (legal reasoning) regarding a Judge's decision in a civil case and to know, understand, and discover the juridical position of legal reasoning (legal reasoning) regarding the Judge's decision in a civil case; and to know and understand the factors that influence legal reasoning (legal reasoning) the Judge's decision in a civil case. Method: The method used by researchers here is: In this research, combining two types of research, namely in this type of research, the researcher conducts research by combining both Normative and Empirical research with a Qualitative approach related to legal reasoning of judges' decisions in civil cases. Result: The research results show that: 1) The nature of legal reasoning (Legal Reasoning) The Judge's Decision in Civil Cases is an effort made by using a scientific approach in seeking the truth regarding the upholding of norms based on Law Number 48 of 2009 Article 1 Paragraph 1 Concerning Judicial Power and in essence thinking, using, developing or controlling problems in the legal field by using reason, or what can be called legal reasoning. 2) Juridical Position of Legal Reasoning (Legal Reasoning) Regarding the Judge's Decision in Civil Cases, it can be seen from the aspect of justice that it is a logical implementation of legal norms in the sociological dimension of law, from the aspect of the truth of a decision, legal reasoning is a consequent form of the logical and analytical nature of law. 3) Factors that influence this include Legal Culture Factors, Knowledge and Understanding of the Law Factors, and Evidence Factors. Conclusion: The Essence of Legal Reasoning (Legal Reasoning) of Judges' Decisions in Civil Cases is an effort made by using a scientific approach in seeking the truth regarding the upholding of norms based on Law Number 48 of 2009 Article 1 Paragraph 1 Concerning Judicial Power and in essence thinking, using, developing or controlling a problem in the legal field by using reason, or what could be called legal reasoning.

Legal Reasoning Models

The access to justice crisis is one that cannot be effectively solved without the automation of legal services. The automation of legal services cannot be efficiently done without efficiently automating legal reasoning. Legal case-based reasoning (CBR) provides a method of obtaining explainable and strong predictions for legal issues that lawyers would typically predict on the basis of analogy to prior decided cases. Automating explainable predictions with regard to these sorts of legal issues is difficult without resort to CBR. Wider adoption of CBR in the legal realm therefore has the potential to increase the scope of legal services that can be automated. Despite this potential, as of early 2018 there were no open-source or commercially-available tools for building legal case-based reasoning systems. This paper describes an open-source tool named docassemble-openlcbr[5] designed for ease of use by legal professionals in implementing CBR in the development of automated legal services.

In this paper, I argue that legal philosophers ought to focus more on problems of legal reasoning. This is a field with many philosophically interesting questions to consider, but also, a field in which legal philosophers can contribute the most to the study and the practice of law. Neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the relevance of the theory of reasons holism to legal reasoning. The second is the question of how to analyze (first-order) legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, inductive arguments, or both, and if so how.

I revisit the debate between Joseph Raz and H. L. A. Hart concerning the nature of legal content and reasoning. Raz contended that legal reasoning should be analyzed as a form of moral reasoning. In contrast, Hart emphasized the distinction between legal and moral content, proposing that legal reasoning is a form of what I will call social-institutional reasoning. I characterize social-institutional reasoning in terms of the agent-relative, domain-specific, universal, and content-insensitive justifications it draws upon. I evaluate Raz’s moralized analysis and argue that it obscures the distinctive contribution that law’s social and institutional grounds play in our understanding of law. By analyzing legal content in moral terms, Raz’s approach obscures the very thing that positivism is well-placed to elucidate: the distinctively social-institutional character of legal reasoning.

In this short paper, I shall argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the practice and the study of law. The practice of law is, after all, an argumentative practice. Lawyers and judges aim to provide solutions to concrete legal problems but rarely try to say anything of general application. And although legal scholars take a more general view of things and typically discuss types of legal problems, they, too, tend to prefer a rather piecemeal approach to legal problem-solving, and usually abstain from defending general theories or otherwise speaking in general terms. But even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, and even though there are many highly talented persons in the above-mentioned groups, neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Perhaps the most important difference is that whereas legal practitioners and legal scholars typically approach reasoning and interpretation in an intuitive way, emphasizing rules of thumb, common sense, and the value of workable legal solutions to problematic cases, philosophers, although they may also reason intuitively and emphasize common sense, often take care to make the logical structure of the relevant argument explicit by formulating as precisely as possible both the conclusion and the premises, and by subjecting the argument thus formulated to close logical as well as substantive scrutiny, where such scrutiny typically involves paying close attention to the content, structure, and function of any relevant concepts. Against this background, I consider the following three types of questions regarding legal reasoning especially worthy of serious consideration. The first question is that of the relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze (first-order) legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments or inferences are to be understood as deductive or as inductive inferences, or both, and if so how.

Law professors of first year students often lament the quality of the work their students produce on essay exams, which are plagued with missed issues, incomplete or inaccurate rules, poor use of facts, and a misunderstanding of basic legal concepts and structures. This Article attributes this disconnect to the critical failing of legal education - the tendency of first-year law courses to focus exclusively on teaching doctrine at the expense of legal skills and reasoning. This Article discusses the need to reorient students’ thinking about learning the law, highlighting the critical importance of explicitly teaching academic skills across the doctrinal curriculum, rather than solely in skills-oriented classes. Developing a foundation of academic skills in the first year will prepare students to focus on the denser doctrines and inclusion of more practice-oriented skills required in their second and third years. There are myriad ways in which real legal methods objectives can be directly incorporated into a traditional first-year syllabus. The Article demonstrates how the popular contracts case Wood v. Lucy, Lady Duff-Gordon can be used as a vehicle to explicitly teach the skills of fact identification and fact analysis in legal reasoning. This case deals with the amorphous and highly fact-sensitive doctrines of good faith and best efforts and is especially good for teaching fact analysis because of the subtle, but artful, use of facts by Judge Benjamin Cardozo.

Evidence law concerns rules for fact-finding. In this sense, it is driven towards the “Epistemology of the Tribunal”. The primary purpose of “courtroom epistemology” is to ascertain the truth or to reduce the uncertainty in fact-finding. Fact-finding is a process of finding minor premise in legal reasoning. Accurate fact-finding is a prerequisite for fair trial. The rational characteristic of fact-finding in legal reasoning, determines that “the fact-finder must have epistemic justification for her findings”. The aim of legal reasoning is to provide legal reasons and justification for judgement. The justification of fact-finding and legal reasoning also derives from justice and human rights. “Truth-seeking” and “goodness-seeking” are the two issues of fact-finding, they together constitute the justification for a judgement. The function of fact-finding in legal reasoning should be emphasized, in addition to the fundamental theory of evidence law and legal reasoning with interdisciplinary approach.

This book is about legal theory and legal reasoning. In particular,it seeks to examine the relations that obtain between law and a theory of law and legal reasoning and a theory of legal reasoning. Two features of law and legal reasoning are treated as being of particular importance in this regard: law is institutional, and legal reasoning is formal. These two features are so closely connected that it is reasonable to believe that in fact they are simply two ways of looking at the same issue. This becomes clearer as the focus of the book shifts from the institutional nature of law to the consequences of this for legal reasoning, and which is the principal focus of the book. The author received the European Academy of Legal Theory award in 2000 for the doctoral dissertation on which this work was based.