Chapter 1: What judging and legal reasoning have been
One way of understanding judging, and the reasoning associated with it, is to ask what it has been. In posing this question with respect to law within what might be called the Western Tradition – that is the tradition that originated in Europe before spreading via colonialism to other parts of the world – one is faced with two sub-traditions, namely the civil law and the common law. The history of the common law in England is not one associated with Roman law texts or with Romano-Canonical procedure and so there are important differences with respect to the reasoning methods associated with the two traditions. However, particularly from the 19th century, there have also been interactions. Some have argued that although Roman law and common law had no genealogical connection, Roman jurists and common lawyers share some of the same casuistic (or ‘bottom up’) methods. Jurists from both legal systems tended and tend to reason from practical cases. Looking at what legal reasoning has been in the civil law is, therefore, of some relevance. The starting point for reasoning for much of Roman law’s history was whether or not a person had a legal action (actio). One might note here how the jurist reasons ‘bottom up’ so to speak. In order to determine whether the claimant has an action one must examine in detail the circumstances: the law is to be found in the facts (in causa ius esse positum).