Legal Reason

In this book, the pervasive use of analogies in the reasoning of lawyers and judges is explained in clear, simple, untechnical prose.

‘This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.’ These words at the beginning of the preface of this book perfectly indicate what On Law and Reason is about. It is a theory about the nature of the law which emphasises the role of reason in the law and which refuses to limit the role of reason to the application of deductive logic. In 1989, when the first edition of On Law and Reason appeared, this book was ground breaking for several reasons. It provided a rationalistic theory of the law in the language of analytic philosophy and based on a thorough understanding of the results, including technical ones, of analytic philosophy. That was not an obvious combination at the time of the book’s first appearance and still is not. The result is an analytical rigor that is usually associated with positivist theories of the law, combined with a philosophical position that is not natural law in a strict sense, but which shares with it the emphasis on the role of reason in determining what the law is. If only for this rare combination, On Law and Reason still deserves careful study. On Law and Reason also foreshadowed and influenced a development in the field of Legal Logic that would take place in the nineties of the 20th century, namely the development of non-monotonic (‘defeasible’) logics for the analysis of legal reasoning. In the new Introduction to this second edition, this aspect is explored in some more detail.

What if the job of police was to cultivate the political will of a community to live with itself (rather than enforce law, keep order, or fight crime)? In Sentiment, Reason, and Law, Jeffrey T. Martin describes a world where that is the case. The Republic of China on Taiwan spent nearly four decades as a single-party state under dictatorial rule (1949–1987) before transitioning to liberal democracy. Here, Martin describes the social life of a neighborhood police station during the first rotation in executive power following the democratic transition. He shows an apparent paradox of how a strong democratic order was built on a foundation of weak police powers, and demonstrates how that was made possible by the continuity of an illiberal idea of policing. His conclusion from this paradox is that the purpose of the police was to cultivate the political will of the community rather than enforce laws and keep order. As Sentiment, Reason, and Law shows, the police force in Taiwan exists as an "anthropological fact," bringing an order of reality that is always, simultaneously and inseparably, meaningful and material. Martin unveils the power of this fact, demonstrating how the politics of sentiment that took shape under autocratic rule continued to operate in everyday policing in the early phase of the democratic transformation, even as a more democratic mode of public reason and the ultimate power of legal right were becoming more significant.

This book is an innovative contribution to analytical jurisprudence. It is mainly based on the distinct premises of linguistic philosophy and Carnapian semantics, but also addresses the issues of institutional philosophy, social pragmatism, and legal principles as envisioned by Dworkin, among others. Wróblewski ́s three ideologies (bound/free/legal and rational) and Makkonen ́s three situations (isomorphic/semantically vague/normative gap) of judicial decision-making are further developed by means of 10 frames of legal analysis as discerned by the author. With the philosophical theories of truth serving as a reference, the frames of legal analysis include the isomorphic theory of law (Wittgenstein, Makkonen), the coherence theory of law (Alexy, Peczenik, Dworkin), the new rhetoric and legal argumentation theory (Perelman, Aarnio), social consequentialism (Posner), natural law theory (Fuller, Finnis), and the sequential model of legal reasoning by Neil MacCormick and the Bielefelder Kreis. At the end, some key issues of legal metaphysics are addressed, like the notion of legal systematics and the future potential of the analytical approach in jurisprudence.

Newly updated ninth edition: “A superbly written, pedagogically rich, historically and conceptually informed introduction to legal reasoning.” —Law and Politics Book Review Over the decades it has been in print, Reason in Law has established itself as the place to start for understanding legal reasoning, a critical component of the rule of law. This ninth edition brings the book’s analyses and examples up to date, adding new cases while retaining old ones whose lessons remain potent. It examines several recent controversial Supreme Court decisions, including rulings on the constitutionality and proper interpretation of the Affordable Care Act and Justice Scalia’s powerful dissent in Maryland v. King. Also new to this edition are cases on same-sex marriage, the Voting Rights Act, and the legalization of marijuana. A new appendix explains the historical evolution of legal reasoning and the rule of law in civic life. The result is an indispensable introduction to the workings of the law.

This primer on legal reasoning is aimed at law students and upper-level undergraduates. But it is also an original exposition of basic legal concepts that scholars and lawyers will find stimulating. It covers such topics as rules, precedent, authority, analogical reasoning, the common law, statutory interpretation, legal realism, judicial opinions, legal facts, and burden of proof. In addressing the question whether legal reasoning is distinctive, Frederick Schauer emphasizes the formality and rule-dependence of law. When taking the words of a statute seriously, when following a rule even when it does not produce the best result, when treating the fact of a past decision as a reason for making the same decision again, or when relying on authoritative sources, the law embodies values other than simply that of making the best decision for the particular occasion or dispute. In thus pursuing goals of stability, predictability, and constraint on the idiosyncrasies of individual decision-makers, the law employs forms of reasoning that may not be unique to it but are far more dominant in legal decision-making than elsewhere. Schauer’s analysis of what makes legal reasoning special will be a valuable guide for students while also presenting a challenge to a wide range of current academic theories.

Legal Reason describes and explains analogical reasoning, the distinctive feature of legal argument. It challenges the prevailing view that analogical reasoning is a logically flawed, defective form of deductive reasoning. Drawing on work in epistemology and cognitive psychology, the book shows that analogical reasoning in the law is the same as that used by everyone routinely in ordinary life, and that it is a valid form of reasoning, derived from the innate human capacity to recognize the general in the particular. The use of analogical reasoning in law is dictated by the nature of law, which calls for the application of general rules to particular facts. Critiques of the first edition of the book are addressed directly and objections answered in a new chapter. Written for scholars, students, and persons interested in law, Legal Reason is written in accessible prose, with examples drawn from the law and everyday experience.

What makes an argument in a law case good or bad? Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences? These questions are central to the study of jurisprudence, and are thoroughly and critically examined in Legal Reasoning and Legal Theory, now with a new and up-to-date foreword. Its clarity of explanation and argument make this classic legal text readily accessible to lawyers, philosophers, and any general reader interested in legal processes, human reasoning, or practical logic.