New Essays on the Nature of Legal Reasoning

✍ Scribed by Mark McBride; James Penner (editors)

• Publisher: Hart Publishing
• Year: 2022
• Tongue: English
• Leaves: 361
• Series: Law and Practical Reason
• Category: Library

✦ Synopsis

This is the first book to bring together distinguished jurisprudential theorists, as well as up-and-coming scholars, to critically assess the nature of legal reasoning. The volume is divided into three parts.
The first part, ‘General Jurisprudence and Legal Reasoning’, addresses issues at the intersection of general jurisprudence – those pertaining to the nature of law itself – and legal reasoning.
The second part, ‘Rules and Reasons’, addresses two concepts central to two prominent types of theory of legal reasoning.
The essays in the third and final part, ‘Doctrine and Practice’, delve into the mechanics of legal doctrine and practice, from a legal reasoning perspective.
Volume 14 in the series Law and Practical Reason

✦ Table of Contents

Contents
List of Contributors
Introduction
PART I:
GENERAL JURISPRUDENCE AND LEGAL REASONING
1. On the Relationship between Law and Legal Reasoning
I. Three Theorists
II. Does It Matter?
III. Taking Stock
2. The Law of the Street
I. Some Preliminaries
II. The Epistemic Problem for Greenberg and Dworkin
III. Official Interpretive Conventions
IV. The Correlation Approach
V. Intention-Dependent Theories
VI. Products of the Street
VII. A Brief Look at the Second Stage
VIII. Conclusion
3. Must Legal Reasons Be General?
I. Introduction
II. Generality as a Feature of Legal Reasons
III. Do Judges have a Duty to give General Reasons for their Decisions?
IV. Conclusion
4. The Factor Model and General Jurisprudence
I. Introduction
II. Rules, Principles and the Hart/Dworkin Debate
III. Posner"s Pragmatism
IV. Analytic, Normative and Substantive Theories of Law
V. Conclusion
PART II:
RULES AND REASONS
5. No Reasons
I. Misrepresenting Raz
II. The Core of the Reasons Account Involves Controversial Assumptions and is Extensionally Equivalent to the Rules Account
III. Lamond"s Problematic Extension to Doctrine
IV. Conclusion
6. Revisiting the Reasons Account of Precedent
I. The Reasons Account of Precedent
II. Evaluating the Reasons Account
III. Coda: Rules and Reasons in Distinguishing
IV. Conclusion
7. Grant Lamond's Account of Precedent: A Personal Encounter
I. Introduction
II. Basic Concepts
III. Constraint by Reasons
IV. Discussion
V. Conclusion
8. How to Govern Conduct
I. Rules and Standards
II. Reasons to Govern By Rule
III. Problems of Governance by Rule
IV. Turning from Rules to Standards
V. Conclusion
9. Working with a Body of Rules: On the Nature of Doctrinal Legal Disagreement in Judge-Made Law
I. Introduction: Two Opening Methodological Themes
II. A First Glance at the Picture to be Dislodged
III. A Sample Legal Analysis: Target Holdings v Redferns
IV. Some Platitudes About Legal Analysis
V. A Few Tentative Theoretical Considerations
VI. Conclusion: Law and Judgment – Rejecting the Holmesian Picture
Appendix – Summary of the Facts Taken from the Headnote of Target
PART III:
DOCTRINE AND PRACTICE
10. Thinking Like a Lawyer: An Introduction to Common
Law Method
I. Introduction
II. Working with Cases
III. Common Law Doctrine
IV. Conclusion
11. How the Ideal Adversary System's Argumentative Structure Threatens Dignity
I. Introduction
II. The Dominant Adversarial Model of Argumentation
III. The Dignity Argument for the Adversary Ideal"s Argumentative Structure
IV. The Adversary Ideal, the DAM's Success Conditions and Trouble With Dignity
V. The Humiliation of Pro Se Litigants
VI. Conclusion
12. Lesser Evils, Mere Permissions and Justifying Reasons in Law
I. Lesser Evils and Justificatory Reasons
II. The Problem of Mere Permission
III. Non-Revisionary Responses
IV. Protected Reasons, Exclusionary Permissions and Cancelling Permissions
V. Purely Justificatory Reasons
VI. Conclusion
13. First Among Equals: Abduction in Legal Argument from a Logocratic Point of View
I. Introduction: What is a Legal Argument?
II. Outline of the (Meta) Argument
III. Elements of the Logocratic Point of View
IV. Abduction from a Logocratic Point of View ('Meta-Abduction')
V. Interpretive Abduction from a Logocratic Point of View
VI. Legal Abduction in Dougherty v Salt from a Logocratic Point of View
VII. Conclusion and Directions for Further Research
Index