Chapter 2: Forms of legal argumentation
The application of rules of law to a particular set of circumstances so as to reach a conclusion that is logically and rationally valid is a complex and subtle intellectual process. It reflects the function of the law as a social institution as well as the language in which the rules are expressed. The extensive range of forms of logic, of rationality and of justice sets the intellectual and normative context within which the relevant rules of law are applied. In practice these broad forms of reasoning are expanded by more detailed techniques of validating and supporting specific conclusions. Many of these are particularly well-adapted to legal reasoning and they justify detailed analysis. The point of commencement is that reasoning is an intellectual process that presents a set of arguments relating to particular sets of circumstances and leading to a positive conclusion. In general terms a priori reasoning proceeds from causes to effects while a posteriori reasoning proceeds from effects to causes. The former is deductive and the latter inductive. It has been suggested that ‘each argument contains three components: deductive reasoning, inductive reasoning and value thinking.’ The clarity of this proposition belies the often subtle relationship between each of these three elements of the process. How might a court respond? It is common for a judicial decision to identify the facts, then to identify the relevant rules of law and then to apply the rules to the facts so as to reach a justifiable conclusion. But as a form of syllogistic logic, deductive legal reasoning proceeds differently.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.