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Rethinking Legal Reasoning

Geoffrey Samuel

‘Rethinking’ legal reasoning seems a bold aim given the large amount of literature devoted to this topic. In this thought-provoking book, Geoffrey Samuel proposes a different way of approaching legal reasoning by examining the topic through the context of legal knowledge (epistemology). What is it to have knowledge of legal reasoning?
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Chapter 5: What is the legal literature legacy?

Geoffrey Samuel

Extract

This fifth chapter continues the reflection on the legacy bequeathed by the history of legal reasoning in looking at the long relationship between reasoning and legal texts. These texts can be broadly classified into two groups: there are those designed for practitioners and professionals and those aimed at students. This reflects a distinction between the teaching and practice of law. One major theme or artefact within this literary legacy – and one that links the teaching books with the practitioner works – is legal taxonomy. Those who teach the law have strived towards a universalist outlook while the professional and practitioner have had on the whole much less interest in the rationalisation of law. This chapter thus examines the relationship between legal taxonomy (mapping the law), legal problem solving and legal reasoning. It looks in particular at the influence of the civilian principle of unjust enrichment on common lawyers and on the debates that this influence has provoked. The chapter also discusses the role and importance of empirical categories.

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