Chapter 3: The methodology of legal decision-making
The several and varied processes of legal reasoning are only a part of the methodology of decision-making. Much depends upon the source of the legal rule, its function, how it is structured within the instrument that creates it, the language in which it is formulated and thus its form and its substance. Although the law may be considered to be a set of rules, it may also be seen as a system which comprises not only these rules but also the principles informing these rules and the doctrines that provide the intellectual support for these rules and principles. As a social institution, the legal system reflects the values of society. While these values perform no formal role within the legal system, the legal system is no doubt influenced by it – at least substantively. When all of these elements are put together, what methodology of decision-making in particular sets of circumstances emerges? In other words, how does the law enable or require decisions to be made in particular sets of circumstances? Again a question easy to state but difficult to answer. It is trite to observe that decision-making may be either an automatic process or a discretionary process. Often it is a combination of both. If it is an automatic process, the conclusion follows directly and explicitly from the propositions whose validity is not questioned. If it is a discretionary process, a choice has to be made between a number of alternatives in relation to meaning, interpretation and application of the propositions upon which the conclusion is based.
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